Africa Community Media (Pty) Ltd and Others v Standard Bank of SA Ltd

Standard Bank applied for leave to appeal to the Supreme Court of Appeal against a judgment and order of Cloete J delivered on 14 September 2023. The September 2023 order had granted the Sekunjalo Group and related entities ('SG') alternative relief in the form of a structural interim interdict prohibiting Standard Bank from closing SG's bank accounts pending the outcome of parallel litigation. The interdict was granted for a fixed period of 12 months (until 11 September 2024). Standard Bank raised five grounds of appeal: that the relief sought was final in effect, that the relief granted was final in effect, that the order was vague and arbitrary, that SG failed to make out a case for interim interdictory relief, and that there are conflicting decisions on the application of Bredenkamp III. The application for leave to appeal was heard on 15 February 2024, approximately five months into the 12-month period of the interim order.

• Whether the relief sought by SG was final in effect, requiring dismissal for failure to meet the test for final interdictory relief
• Whether the structural interim interdict granted for 12 months was final in effect
• Whether the court order was vague and thus ineffective, and arbitrary and thus irregular
• Whether SG failed to make out a case for interim interdictory relief, including whether the correct legal test was applied
• Whether conflicting High Court and Equality Court decisions on interdicting bank account closures warranted SCA clarification
• Whether it was in the interests of justice to grant leave to appeal

The applications for leave to appeal in both case numbers 9318/2022 and EC08/2023 were dismissed with costs, including the costs of two counsel where so employed.

The mere fact that an interim interdict has a fixed duration does not automatically render it final in effect; the question is whether it involves a final determination of the rights of the parties. A structural interim interdict designed to do justice to both parties pending the outcome of parallel litigation may be interim in substance even if operative for a defined period. Additionally, where the main proceedings are due to be heard within a short period, it may be premature and not in the interests of justice to burden an appellate court with an appeal on constitutional issues.

The court expressed concern about Standard Bank's conduct in waiting five months into a 12-month period to bring the application, and in only offering an undertaking at the reply stage not to close SG's accounts pending any SCA judgment, depriving SG's counsel of proper notice and opportunity to respond. The court described this as 'unacceptable'.

This case is significant in South African law as it addresses the controversial issue of banks unilaterally closing client accounts and the availability of interim interdictory relief against such closures. It engages the constitutional right to freedom of trade (section 22 of the Constitution) in the banking context, and provides guidance on the distinction between interim interdicts that are 'final in effect' versus 'final in substance'. The judgment also applies the interests of justice test for leave to appeal in the context of structural interim interdicts.