Report of the Commissioner’s investigation into African Bank Limited
2 May 2016
African Bank Limited (African Bank) was placed under curatorship by the then Minister of Finance, Mr Nhlanhla Nene (the Minister) on 10 August 2014. Recognising the importance of investigating the circumstances that gave rise to African Bank being placed under curatorship, the Registrar of Banks (the Registrar) appointed Adv. JF Myburgh SC as Commissioner in terms of the provisions of section 69A(1) of the Banks Act, 1990 (Act No. 94 of 1990 – the Banks Act), read with sections 4 and 5 of the Inspection of Financial Institutions Act 1998 (Act No. 80 of 1998) on 30 August 2014 for the purpose of investigating the business, trade, dealings, affairs, assets and liabilities of African Bank and/or its associate(s). Adv Myburgh was assisted by Adv V Maleka SC and Mr B Abrahams. The manner in which the investigation was conducted is outlined in the Commissioner’s report (Myburgh report).
The Commissioner submitted his report to the Registrar in February 2015. Section 69A of the Banks Act prescribes that both the examination, and all or part of the resultant report, shall be private and confidential unless the Registrar, after consulting with the Minister of Finance, directs otherwise.
Following numerous written representations by persons mentioned in the report and, in order to ensure a procedurally fair process, prior to the Registrar taking the decision contemplated in section 69A(13) of the Banks Act, the Registrar, through Werksmans Attorneys (Werksmans), communicated with those persons referred to in the Myburgh report, to provide them with the opportunity to review the report.
The South African Reserve Bank instructed Werkmans to request each person referred to in the Myburgh report in writing to review the report and make written representations, should they so elect, regarding the status of the report and more particularly why the Registrar should not direct, after consultation with the Minister, that the Myburgh report should no longer be private and confidential. Affected parties were afforded the opportunity, against the signing of appropriate confidentiality undertakings, to review the Myburgh report and to make written representations up to and until 20 November 2015.
Of the 37 individuals or entities invited to review the Myburgh report and make written representations, 35 took up the invitation and reviewed the Myburgh report during the aforementioned period, of which 32 were represented by legal representatives and 18 submitted written representations by 20 November 2015.
The Registrar also had to inform the Minister of Finance, Mr Pravin Gordhan, of the developments relating to the Commissioner’s investigation and provide him the opportunity to consider the Myburgh Report and the Registrar’s views.
The Registrar duly considered the representations and, after consultation with the Minister of Finance, considered that it will be in the public interest to direct, with effect from the close of business on 12 May 2016, that the report is no longer private and confidential.
It is important to note that the contents of the report represent the Commissioner’s opinion, based on the findings of the investigation conducted.
Issued by René van Wyk, Registrar of Banks, South African Reserve Bank, 2 May 2016
