Zondo says banking laws must change to allow clients to be heard before shutting accounts

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  • The State Capture Commission has recommended that there be laws protecting clients before banks shut their accounts. 
  • Chief Justice Raymond Zondo found that the legal system allowed rapists and murderers the right to defend themselves, and banking clients deserved similar rights. 
  • He did however find that when looting by the Guptas became notorious in the public sphere, banks were obliged by law to act against the family.

The Judicial Commission of Inquiry into State Capture has recommended that existing legislation be changed, or that new laws be introduced that require banks to afford clients an opportunity to defend themselves before shutting down their accounts.

In the final tranche of volumes for the state capture report, released on Wednesday, commission chair and Chief Justice Raymond Zondo examined the decision of SA’s major banks to close the Guptas' accounts, once their looting become "notorious" in the public sphere.

While making several findings on this this matter, Zondo focused his recommendations on what he thought were "unfair" decisions by banks to merely give clients a "reasonable notice of termination". The Supreme Court of Appeal (SCA) previously ruled that banks were not obliged to hear the client's side, since the two shared a contractual relationship.

"In this day and age in South Africa, it is unacceptable that an institution as powerful as a bank should have no obligation to hear … what a client has to say before the bank may close that clients’ account on suspicion that the client may be involved in illegal or corrupt transactions," Zondo said.

"In our legal system, even those who are accused of rape and murder are not sent to jail without being given an opportunity to tell their side of the story. There is no reason why banks should not be required to observe this basic principle."

The president's 'friends'

With regards to the Guptas, Zondo found that it was clear "beyond any reasonable doubt" that the family and their "politically connected enablers" had embarked on a campaign to loot state coffers, and "until the banks stopped them from doing so, were using the banks as their vehicles for this purpose".

He said when the Gupta looting became notorious in the public sphere, banks were obliged by law to act against the family.

"The banks should therefore not be criticised for acting against the Guptas. If anything, the three banks [that] delayed their closure decisions … might have been interrogated as to why it took them so long to act."

Zondo said the accusation that banks’ decision to close the Gupta bank accounts was made "to further the agenda of white monopoly capital" was entirely unjustified and there is no evidence to support that.

He found that "there is no doubt" that former president Jacob Zuma wanted an inter-ministerial committee (IMC) that was looking at the closures to "come to the assistance of his friends, the Guptas". The IMC at that time was chaired by former minister Mosebenzi Zwane.

"I have concluded President Zuma and Mr Zwane misused their public power in an attempt to achieve a benefit for the Guptas, not because their case was a deserving one … but because of the power and influence [that] the Guptas were able to wield in the South Africa of those times.

"In my view this conduct … ought to be deplored and condemned ... as a violation of the powers vested in [them] by the Constitution." 

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