Ndudane and Others v Financial Intelligence Centre

The applicants—natural and juristic persons including a non-profit company—were complainants in a main Equality Court application against several major South African banks (ABSA, FirstRand/FNB, Investec, Nedbank, Standard Bank). Their banking services and facilities were terminated by various banks without substantive reasons beyond 'reputational and business risk' or not fitting internal risk appetite policies. Some applicants had their accounts terminated after associated entities sued a bank, others received no response to requests for reasons. The applicants alleged that the banks treated them in a discriminatory and unequal manner compared to other individuals and organizations (including EOH, KPMG, Steinhoff, and Tongaat Hullet) that had negative publicity involving fraud, corruption, and regulatory violations of a massive scale, yet retained their banking facilities. The applicants sought information held by the Financial Intelligence Centre (FIC) under sections 40 and 41 of FICA concerning the respondent banks' Risk Management and Compliance Programmes and reports of suspicious and unusual transactions relating to both the applicants and comparator entities. The FIC opposed the application on multiple grounds including lack of legal entitlement, the principle of subsidiarity (non-compliance with PAIA), the application being a fishing expedition, non-joinder of affected entities, and asserting the Uniform Rules should govern access for litigation purposes.

• Whether section 21(5) of PEPUDA confers ancillary interlocutory jurisdiction on the Equality Court to order disclosure of information held by the FIC.
• Whether the principle of subsidiarity required the applicants to follow PAIA procedures instead of relying directly on sections 40(1)(e) and 41(d) and (e) of FICA for access to information.
• Whether the applicants demonstrated a sufficient nexus between the information sought and their cause of action in the main Equality Court application.
• Whether the application amounted to an impermissible fishing expedition.
• Whether the applicants were required to join all persons and entities named in or affected by the reports as necessary parties.
• Whether the information sought was constitutionally protected under section 32(1) of the Constitution and could be disclosed without threatening state security or the financial system.

The application was granted. The FIC was directed to provide the applicants with all documents requested in prayers 1 to 5 of the notice of motion within twenty (20) days of the date of the order. The FIC was ordered to pay the costs, including the costs of two counsel where so employed.

Sections 40(1)(e) and 41(d) and (e) of the Financial Intelligence Centre Act 38 of 2001 provide an independent statutory mechanism by which a person may apply to court for an order entitling them to receive confidential information held by the Financial Intelligence Centre. Where such information is material to the determination of a dispute—including an Equality Court complaint of unfair discrimination—and its disclosure would not threaten state security or destabilise the financial system, a court may order disclosure. Such an application is properly brought under section 21(5) of PEPUDA as an ancillary interlocutory order, and the principle of subsidiarity does not require compliance with PAIA where FICA itself provides a specific mechanism for court-ordered access.

The court made strong observations on the constitutional imperative of transparency in the financial sector regarding potential racial discrimination. It stated: 'Non-disclosure will allow the foul smell of racism and white superiority to linger around major banks in the Republic.' It further observed that constitutional institutions have a responsibility to assist disadvantaged complainants, and that if racism exists in the financial sector, the FIC needs to disclose—not hide—what it holds. These remarks reflect the court's view on the broader public interest and constitutional values at stake, though they are not strictly necessary to the legal reasoning on the statutory provisions.

This judgment clarifies the interplay between PEPUDA, PAIA, and FICA in the context of access to information held by the Financial Intelligence Centre. It confirms that FICA provides an independent pathway to court-ordered disclosure of confidential FIC-held information without requiring compliance with PAIA. The case is significant for Equality Court litigation, establishing that complainants alleging unfair discrimination by banks may access FIC-held compliance and transaction-reporting information to prove differential treatment and discrimination. It also underscores the constitutional obligations of regulatory bodies to assist disadvantaged complainants in accessing evidence that may reveal systemic discrimination in the financial sector.