The Pretoria High Court last week dismissed an application by former Absa director Sipho Pityana to release board documents that he believes show the SA Reserve Bank’s (Sarb) Prudential Authority unlawfully interfered in his removal as a director of the bank in November 2021 and scuttled his chances of being appointed group chair.
The Prudential Authority and Absa were cited as respondents in the case.
ADVERTISEMENT
CONTINUE READING BELOW
Read: Sipho Pityana clears hurdle in Absa case after removal as director
The case stems from accusations of sexual harassment against Pityana by an employee while he was serving as chairman of AngloGold Ashanti, a charge he has steadfastly denied. This came when he was serving as the lead independent director on the Absa board and was the preferred candidate to replace the outgoing chair, Wendy Lucas-Bull.
Two investigations were carried out into the allegations, the first by AngloGold Ashanti, which was unfavourable to Pityana, and a second, commissioned by Absa, which found flaws in the first report for not considering corroborating evidence.
Though last week’s court ruling dismissed his application for the release of certain board documents, Pityana says the judgment advances his main case, in which he is asking the court for a ‘declarator’ that the Prudential Authority failed to follow the process for nominating a senior bank official as outlined in Section 60 of the Banks Act. This declarator, if successful, is almost certain to be followed by a substantial damages claim against the authority.
Read: Pityana demands minutes of Absa board meetings
Pityana maintains that the Prudential Authority interfered in the Absa chair selection process when it objected to his appointment and notes that the latest court ruling vindicates his claims.
“It is common cause that the names of prospective nominations were provided to the [Prudential] Authority and that the authority responded that it will not support the nomination of Mr Pityana. It is common cause that the process as prescribed in the legislation had not been followed,” reads the judgment.
In response, Pityana says the judgment “reminds us that my main application seeks no relief against Absa, which begs the question of its opposition to my application against the Sarb. This long-delayed judgment finally opens the way for the consideration by the court of whether the Sarb acted unlawfully. We will now proceed with our submission in this regard.”
Read: Pityana goes to court to challenge his removal from the Absa board
In a statement, Absa says it welcomes the 29 September 2023 judgment “dismissing Mr Pityana’s application for disclosure of certain documents, with costs. The judgment vindicates Absa’s position that the demand for disclosure was bad in law and that the way in which it was framed was indicative of a fishing expedition.”
ADVERTISEMENT
CONTINUE READING BELOW
This is the latest chapter in a long-running dispute between Pityana, Absa and the Prudential Authority.
Read: Absa removed me unlawfully from the board – Pityana
In May this year, the same court ruled in favour of Pityana, ordering Absa to hand over its record of decision in terms of Rule 53 of the court rules that resulted in him being removed from the board as the lead independent director. Pityana says the bank has not complied with this order and has instead pursued a ‘Stalingrad strategy’ of delaying court proceedings.
Absa says it is not in breach of this order. “Absa has delivered the non-confidential part of the record and is in the process of settling the confidentiality agreement, which is being negotiated in good faith with Mr Pityana’s attorneys,” it says in a statement to Moneyweb.
Read: Candidate for Absa chairman role sues regulator over rejection
“Absa further fundamentally disagrees with Mr Pityana’s disingenuous misreading of the judgment, as set out in his media release of 1 October 2023. Neither the issue of the validity of the process followed in the appointment of the Absa chair, nor Mr Pityana’s allegations of interference by the Prudential Authority were before the court for decision in the interlocutory proceedings, and the court made no findings whatsoever in this regard. As regards the delivery of the Rule 53 record, Absa denies being in breach of the court’s order of 10 May 2023. Absa has delivered the non-confidential part of the record and is in the process of settling the confidentiality agreement, which is being negotiated in good faith with Mr Pityana’s attorneys.”
