THE Ht FE In the matter between: MINISTER OF FINANCE. Applicant and ‘OAKBAY INVESTMENTS (PTY) LTD PI" Respondent OAKBAY RESOURCES AND ENERGY LTD 2 Respondent ‘SHIVA URANIUM (PTY) LTD 2" Respondent TEGETA EXPLORATION AND RESOURCES (PTY) LTD 4° Respondent JJ MINING SERVICES (PTY) LTD 5° Respondent BLACKEDGE EXPLORATION (PTY) LTD 6° Respondent ‘TWA NEDIA PTY) LTD 7 Respondent THE NEW AGE 8° Responcent AFRICA NEWS NETWORK (PTY) LTD. 9 RespondentVR LASER SERVICES (PTY) LTD 10” Respondent 'SLANDSITE INVESTHENTS ONE HUNDRED AND EIGHTY (PTY) 11*Responden ‘CONFIDENT CONCEPT (PTY) LTD 128 Respondent ‘JET AIRWAYS (INDIA) LTD (INCORPORATED IN INDIA) 19" Respondent SAHARA COMPUTERS (PTY) LTD 14 Respondent ABSA BANK LTD 18 Respondent FIRST NATIONAL BANK LTD 16" Respondent ‘THE STANDARD BANK OF SOUTH AFRICA LIMITED “7 Respondent NEDBANK LIMITED 18" Respondent (GOVERNOR OF THE SOUTH AFRICAN RESERVE BANK 19" Respondent REGISTRAR OF BANKS 20" Respondent DIRECTOR OF THE FINANCIAL INTELLIGENCE CENTRE 21" Respondent FILING SHEET ee THE FOLLOWING IS PRESENTED FOR SERVICE AND FILING,‘+ The Explanatory Supporting Aicavit of Standard Bank, *h DATED AT SANDTON on this the |. day of December 201 BOWMAN GILFILLAN Inc. 17" Respondent's Attomays 165 West Steet Sancton 2148, Tol: 017-860-2000 ax: 017-688-9001 mal clement mk\vag@bowmanslaw com! aan mana Ret C Mkiva’ 6164672 clo BOSHOFF ATTORNEYS ‘Ground Flocr, Hazelnooc Gate Office Park 14 Oaktree Avenue Car Oaktree AVENUE & Dely Roas Hazelvoog, Protora Tal: 072-424-7500, ex 086-228-6805 Ret: Natasha Norje / NNIS64 JO: THE REGISTRAR OF THE. ABOVE HONOURABLE COURT moni ane STATE ATTORNEY pee, case Ath eresrromn, - sho SALU Building 206 12-13 a ae ee Oe oss es ieee ae ae Ret 2427/16/232. Ms T Nnlenz:AND To: VAN DER MERWE AND ASSOCIATES Serger £525 210 7,10, 10, on 62 Rigel Ave Nort Waterloo, Pretoria Tel 012 343 5432 E-mail: simone@dvmass.coza Ret: MeGT VD Merwe/st07e ‘AND To: EDWARD NATHAN SONNENBERGS 418" Respondent's atomeys 150 West Steet Sancton Tol: 017 289 7600 (011 268 7990 E-mal: dlambet@ ensafica.com Ret. M Ketz/D LaminervOae9e8 clo GERHARD BOTHA & PARTNERS First Foor, Erasmus Forum Building 8 (Chr Rigel Avenue ana Stokxescraat Erasmusrand Pretoria, Tol: 012347 480 Fax: 012 347 6839 Esai: botheparners Ret Mra Swart/e H Botha AND To: GERHARD BOTHA SPARINERS NGS Ret tvnie outa Nver WV >\co + NORTON ROSE FULBRIGHT SOUTH AFRICA ING, ter Resvorcentsatereye 21 rrstpan Die Senden Faron ass 2080 Erma am cola Qnoroesetban con cel svans®rortoncaehiticht cn fot uc ooeaea hs ee SS MOTHLE JOOMA SABDIA INC, Sound ro Dare ens bre Exelon Sheba ane Boots Scoot tmis!s Srooyn Jooma Sebaia Foner sea sis Mame ee 5 at ened me Ref: Mr Jooma/NOR' 0182 ACRECE i pretoria Branch, S wihaut reelsAND To: BAKER & MCKENZIE 18" Respondents storeys Tet (rnp ort 4300 mal Gaard Rudoih@pakemekenzio com / Wide Ebrahim @bakarmckersia com ‘Satur Oconnormpbaterntetaincars Ret G RutphiCo | fecsnedvanoa rapa) So ADAMS © KoaMS eet ‘Adams & Acams Piace Dbendling van regia Lmmood Bridge 4 Daventy Seeet ote Lynnwood Manor a4 Pretoria ‘Tet (042) 422 2000 Rf: AdeleJorsean AND To: WERKSMANS 49% and 20" Respondents’ Attorneys 155.5" Sirest Sandton at 017535 8000 Fax: 011 535.6600, mal: cmoretis@worksmans.com / CManskagbwerksmans.com Ret. SOUT 267.63 clo MABUELA INCORPORATED Charter House 179 Bosman Sveet Pretoria Central ‘Tel 012 225 2068 Emel: mabusia@tiscal co za AND To: MACROBERT ATTORNEYS 21* Respondent's Atorneys MacRober Bulaing Cor Jan Shaba & Justice Mahomed Streets Tel 072 425 5038 Roroengpemeencezs — ¢ MacRobert AttorneysINTHE HiGH co Ica RIA) 2 Inthe mater between: [MINISTER OF FINANCE ‘Applicant end ‘OAKBAY INVESTMENTS (PTY) LTD 1° Respondent ‘OAKBAY RESOURCES AND ENERGY LTD 2 Respondent ‘SHIVA URANIUM (PTY) LTD ‘Respondent ‘TEGETA EXPLORATION AND RESOURGES (PTY) LTD 4 Responder He MINING SERVICES (PTY) LTD 1 Respondent BLACKEDGE EXPLORATION (PTY) LTD 6° Responder ‘TWA MEDIA (PTY) LTD. 7" Respondent ‘THE NEW AGE 6 Respondent [AFRICA NEWS NETWORK (PTY) LTD 6 Respondent / %&VR LASER SERVICES (PTY) LTD 10” Respondent ISLANDSITE INVESTMENTS ONE HUNDRED AND EIGHTY (PTY) 11” Respondent uo ‘CONFIDENT CONCEPT (PTY) LTD 12" Respondent JET AIRWAYS (INDIA) LTO (INCORPORATED IN INDIA) 13" Respondent SAHARA COMPUTERS (PTY) LTO 14" Respondent ‘ABSA BANK LTD 18" Respondent FIRST NATIONAL BANK LTD 18" Respondent ‘THE STANDARD BANK OF SOUTH AFRICA LIMITED 17" Respondent NEDBANK LIMITED 18" Respondent (GOVERNOR OF THE SOUTH AFRICAN RESERVE BANK 419" Respondent REGISTRAR OF BANKS 20" Respondent DIRECTOR OF THE FINANCIAL INTELLIGENCE CENTRE 21" Respondent EXPLANATORY SUPPORTING AFFIDAVIT OF STANDARD BANK. 7 a 1G , |. the undersigned,fan Hamish Scott Sinton Do hereby state under oath that: 1, | am the Group General Counsel of The Standard Bank of South Africa Limited (Standard Bank’). Standard Bank is joined as the 17 respondent in these proceedings. | am duly authorised to depose to this afidavt on behalf of Standard Bank It has authorized me to do so in suppot ct the reli sought by the Minister of Finance (the Applicant), and also in support ofthe additional relief set out inthe noice of motion annexed hereto as “SB1 12 “The facts descrived herein fall within my personal knowledge, uness | state ‘otherwise or the context of what | say makes it clear that they donot. | confi thatthe fats set out herein are, othe bes of my knowledge and belie, rue and comet Where relevant I refer tothe confirmatory affdavit ofthe Chet Executive Officer of Standard Bank, Mr Sim Tehabalala, who has personal knowledge of certain of the facts to which | shall refer. Mr. Tehabslala also confirms that Standard Bank seeks the extended reli that is set out in annexure “SB1", Mr “Tshabalala's confirmatory affidavits annexes hereto marked "S82" 43, Standard Bank has taken legal advice from its legal epresentaives in respect of the issues which arse in this application. It has been advised that itis desirable _and convenient for it not only o support the relief sought by the Applicant but also puto seek the extended reli ofits ov inthe terms set out in annexure “SB”. ‘explain below the circumstances which justi that relief and the contentions upon hich Standard Bank relies fr that ei 4.4. Insofar as I make submissions on legal atlas I do soon te advice of Standard Bank’s legal representatives obtained in the course cf consuitations and preparation ofthis affidavit which advice | accept as correct. relief in annexure °SB1” 2 Until 6 June 2016 Standard Bank and the 1 respondent ‘Oakbay’), as well as several ‘entities associated with it and the Gupta family, had a banker-customer relationship, ‘Apart from Oakbay, the 3°, 6°, 7°.10°, 11", 12" and 14" respondents and other entios hich are not cited inthis application had banker-customer relationships with Standard Bank (inthis affidavit | wil refer to these entities as entities that are associated with ‘Oakbay). Standard Bank terminated those relationships in circumstances which | shall cexpiain more ful below. 3. Arising from a notice given by Standard Bank on or about 6 Apri 2016 to Oakbay and ts associated entities of Standard Barks intenton to terminate all banker-customer relaonships with effect from 6 June 2016", Standard Bank became the subject of a wholesale public campaign, through pad adverisementsin the medi and pressure from several polticl partie (nctucing the Afican National Congress (“ANC") and the South ‘Atican Communist Party (the SACP"), trade unions (more particulaty the Congress of Sommer : 7 } 731 32. South Aican Trade Unions (‘COSATU') that refered the account closures to the National Economic Development and Labour Council ‘Nedlac"), and some members of the Cabinet of the Republic of South Altica (the “Republi, 1o reconsider and reverse its ecision, and re-nstate the relationships. “The puble campsign and political pressure brought to bear upon Standaré Bank to review and reverse ts decision, 8 more fly described later inthis affiavi was orchestated by Cakbay and its associated enties which relied on their ‘apparent political connections and infuence in Government fo mount them. As part of such campaigns Standard Bank's senior executives were requested to attend a meeting wih some members ofthe National Execuive Commitee ofthe ANC and a meeting with a commitee of Cabinet purportedy led by the Minster of Mineral Resources, Mr Mosebenzi Zwane, to account to them for Standard Bank's decision, While | am aware that itis unclear whether the commitee is 2 {ask team or an inter-minsterialeommitee of Cabinet | refer to this commitee of Cabinet simply a8 (the Commitee) Later in this affidavit |record how, in those ‘meetings, Standard Bank decined to ciscuss the affairs of any customers, Including those of Cakbay and its associated entities; the pent here mace is that in Standard Bank's view the purpose of each request fer a mecing was to pressure Standard Bank ito retaining banking relationships with Oakbay and its associated entities, ‘The pressure brought to bear on Standard Bank, inthe context described above. and at he instance of Oakbay and its associated entities, is unprecedented. and to the best of my knowledge has not been experienced by tor any of the other members of the Standard Bank group, In connection wih or ; & {2 sing from adecision to terminate a barker-customer relationship, wth any other of is erstwhile customers Included in that pressure has been a request by Minster wane, of atsibuted 10 him, ostensibly on behalf ofthe Cabinet ofthe Repubie, ‘ha the decision of Standard Bank and other banks to terminate their relationship. with Oakbay and its associated enites be investigated and reported on by 2 judicial commission of inquiry. also led to Ministerial teas to review the prevaling banking reguatory and supervisory legal framework. Whilst the Orfice ofthe Presidency, atthe time, éatanced itself from the publ statements and threats made by Minister Zwane on behalf ofthe Cabinet, it has not postively repudiated the threat oestabish a jdcial commission of ngiy orto review the prevaling banking regulatory and supervisory legal framework, on the ground only ofthe termination by the banks of their relatonshis with Oakbay and its associated entities In fact as recenty as 23 November 2016, inthe context of questions being posed to the President by Members of Pariement with regards tthe intervention of Government in respect ef the termination of banking relainships with Oakbay and its associated entities, the President staed, when askec by, amongst others, 12 Member of Parliament, Mr. Bantu Holomise, about the status of the recommendation ofa jusiil commission of inquiry 28 refered to him by Minister Zane allegedly atthe request ofthe Cabinet, that such inteventin is sil under ‘consideration by the President. From the facts and circumstances explained inthis affdavit, Standard Bank reasonably apprehends that the above threats could be carried out as the Present has gone as far {2 to acknowledge in Pariament that they are under consideration. Because ofthe advice 7%,ea 62. that there ie no legal bas for these threats, and because ofthe vice that there is no lawl basis fr public functionaries, whether they be members ofthe Commitee or other individual Ministers or the Executive collectively, toute thei publ office and inuence to intervene in Standard Bank’ erstwhile barker-customer relationships atthe instance of ‘Oskbay and its associated entities, Standard Bank has been advises to not only support the relief sought by the Applicant but also to seek the adstional eet set out in annexure "SBI" hereto. “To avoid possible contentions of nonjoinder, Standard Bank's attorneys have been asked to.ensure that a copy of tis affidavits made available to the Presiden, asthe head ofthe National Executive and Cabinet, so that he or any other member of the National Executive ‘authorised by him may participate in these proceedings, should he elect or be advised to dose, In this afcavitt, describe international standards and best practices, and domestc obigtions, hich have a bearing on the banker-customer relationship as are applicable to local banks, including Standard Bank; then describe the adverse consequence to which Standard Bank and other af shore banks associated with &, as eubsiciries of Standard Bank Group Limited (-S86°) ae tikely to suter inthe event oftheir fue to comply with itemational and domestic reguatory obligations and standards on banker-customer relatonships andor in the event of any such compliance being overtumed pursuant to interventions ofthe type thatthe Applicant is resisting by means of T Si63. 64 65. 66. a7, ‘International regulatory obligations this apolcation and that Standard Bank has been subjected to as more fuly described hereater, thereater, describe the real and potential adverse implications for South Aica's economy and financial system if local banks including Standard Bank are prevented from adhering to and complying wit ther interational and domestic ‘obligations on banker customer relationships; proceed to explain the process and considerations which gave rise to the ‘decision by Standard Bank fo give notice of Its intention to terminate its banker. customer relationships wih Oakbay and its associated entities, and thereafter implement that decision; ‘xolain the basis of Standard Bank’s apprehension that threats made tt, based pon an unused assertion that its compliance with domestic and intemational legal obigations was unlawful, could be implemented, inthe absence of any Lncontitonal, express and postive public repudiation of those treats by Mister ‘Zwane and the Presidency respond to the averments made by the Applicant in his founding affidavit, to the ‘extent that itis necessary todo so finally, conclude with motivating the appropriate order sought by Standard Bank,7. Standard Bank is required, by law, to comply wih several interraonal and domestic ‘blgstions in the conduct ofits banking business. tn this section of the affidavit the nature and extent ofthese obigations, with reference to internatanal legal instuments \which are applicable to banks operating inthe Republe, and legisaton promulgated by Parliament, ae set out This is done inorder to show thatthe Conmite's interventions fon behalf of Oakbay and its associated entities, folowed by Minter Zwane'sthrest, hich were stated to be on behalf of Cabinet, to both procure the establishment of @ |uicial commision of inguin Standard Bank's compliance with hose obligations and to have Govemment review the prevaing legal framework governing that compliance, are Unfounded ang have no basi in aw and fact. The BASEL Rules 8 The South Atican Reserve Bank Is @ member ofthe Bank for Intemational Settements (81S) BIS has its headquarters in Basel, Svitzeriand and has 60 rember canal banks ich are representative of various counties from around the ward. BIS was created pursuant io an international treaty he Hague Agreement of 1930). The mission of BIS is to sewe central banks in their pursuit of monetary and financial stably, which fs a Precondition for sustained economic growth and prosperty. Its rules and recommendations are of application in the domestic ating and ryuate the conduct of banks, including Standard Bank, 9. The BIS created the Basel Commitee on Banking Supervision (the Basel Commitee"), 2s a forum of representatives from the member central banks, Its gurpose Isto facitate ‘egular cooperation on banking supervisory matire, South Afcs is represented on the Basel Commitee by ofcials ofthe South Aftican Reserve Bank. The Basel Commitee J10. 1 2 meets regulary to agree on risk management rules that affect all banks worldwide. The ‘les ofthe Basel Commitee and ether commitees ofthe BIS are zommenly referred to as the Basel Rules In January 2014 the Basel Commits issued is guidelines on “Sound management of ‘risks related fo money laundering and financing of terrorist. Te stated purpose of the guidelines isto describe how banks should include money laundering (ML) and franeing of tervism (FT) risks within ther overall isk menagement. The purposes of sound MLIFT risk management are two-fold. Fist, they are intended to protec the reputation of banks and national banking systems by preventing and deterring the use of banks to launder tick proceeds orto raise orto move funds in suppor of terrsm. The second is to preserve the itepy of the international financial system and the work of governments in adcressing cortption and in combating the financing of tererism, ‘A central feature in the implementation of the guidelines i on-going surveillance or monitoring of customers’ activites through their bank accounts. This is considered to be essential because banks can elfectively manage their risks only if they have an “understanding of the necmal and reasonable banking acvty of thelr customers to enable them to identity attempted and unusual transactions which fall ouside the regular patterns of banking activity. Banks are required to have systems in place that detect “unssual or suspicious transactions’. In this regard, banks are required to consider ther customers risk pofle, ibich is developed as a result of the collation of the information pertaining to ther customers, which incudes Information obtained from external sources,13, The mentioned guidelines deal wth the reporing of suspicious transactions and asset {reezing. Paragraph 86 provides that ~ “Ongoing monitoring and review of accounts and transactions will enable banks 10 Wontly suspicous activ, eliminate false postives and report promptly genuine suspicious vansactions. The process of kontfyng, hvestgating and reporting suspicious transactions to the Financial Inteligeace Unt should be cloarty species in the bank’ poets and procedures ane communicated to at ‘personne! through regular training’ 14. Paragraph 58 ofthe mentioned guidelines provides that once a suspicion has been ralsed in relation to an account or relationship, in alin to reporting tha: suspicious actly @ bank should ensure that appropiate action taken to adequately mig the sk ofthe bank being used for e“minal actives. This may include a review of ler the risk lassication ofthe customer or account eof the entire relationship ise, Appropriate ‘action may necessitate escalation othe appropriate level of decisior-making to determine how to handle the relationship, taking ino account relevant factors. Due fo the length of the guidelines, only the relevant exacts ofthe guidelines are atleched hereto marked “ses? 16. The statement issued by the Basel Commitee in December 1886, hn the document tted “Prevention of Criminal Use ofthe Banking System forthe Purpose of Money Leunderinge is also relevant to banks’ cscharge of their intemational cbigatons. A copy of that documents annexed hereto and marked "SBA" notes the following: Fru cony oe guseina pa te loug nk p.owa a che ES pt Pa te tac ah ‘uanne bared arta a Cotas Sandy eaten %,“Pubic conidence in banks, and hence thei stabitty, cen be undermined by adverse pubiay as a rsul of inadvertent association by banks with criminals. In adation banks may lay themselves open to dec losses fom fraud, ether through negligence in screening undesirable customers or where the integrity of their own office has been undermined through association with criminals.” 16. Fortis resson, the Basel Commitce set out a general statement that explains measures that must be taken to sereen customers and to monitor bankng accounts. These Princpies include customer identfiction, in terms of which banks ae required to ensure thatthe financial system isnot used 2s a channel for eriinal funds. As a result, banks a6 urged to take reasonable efforts to determine the tue identity of al customers that require the services of banks. The ownership of all accounts must be idened Furthermore, banks are required to ensure compliance with al appicable laws. Banks must ensure that they do not offer services or provide active etssance “in transactions hich they have good reason to suppose are associated with money laundering activiios: 17. The above international regulatory guidelines and best practices apply to Standard Bank, ‘ane other local banks in equal measure. A faire to comply with them wil tract adverse legal and reputational consequences which I describe elsewhere inthis affidavit Domestic regulatory obligations 18. Standard Bank is a registered bank in accordance with the relevant provisions of the Banks Act, 94 of 1900, as amended (the Banks Act), In terme of section 35 of the Banks ‘Act, Standard Bank i obliged to conduct its banking business pursuant to a licence19. 20, a 2 Issued by the Registrar of Banks and renewed annually. In accordance with the provisions of section 606 of the Banks Act, Standard Gank is required to establish and maintain on adequate and eflecive process of corporate governance to ensure that it, amongst others, complies wih al laws and regulations sppicable to it Pursuant tothe regulations published in terms of the Banks Act in Government Notice R.1029, Goverment Gazetie 35950 of 12 December 2012, a tegistered bank such as Standard Bank is required, by lam, to establish and maintsn policies and procedures that facitale the reporting of suspidous customers. and ‘suspicious transactions. ‘The primary legislation that gives effect to local banks! compliance with intemational standards, tke the Basel Rules, and ther obligation to report suspicious customers and suspicious transactions isthe Financial Intligence Cerire Act 38 ef 2001 (the FIC Act” fr ‘the FICA’). It was developed on the recommendations of, and having regard to the framework developed by, the BIS (including its Basel Committe) ar the Financial Acton Task Force (FATE), The slated purpose of the FIC Act isto combat money laundering activites, franca terocem and related activites. ‘Section 3 ofthe FICA sets is principal objective as being "fo assist in the identination of the proceeds of unlawful activities and the combating of money laundering actos and the financing of tererist and related actives" Section 29 of the FICA provides forthe obligatory reporting of suspicious and unusual ‘transactions 'a Report). The provisions of section 29(1) ofthe FICA impose an obligation ‘on a bank and its employees, in orcumstances where they are party to or facitate certain 1 Sutransactions or activites and know or ought reasonably to have known that it or they may receive the proceeds of unlawful activiy, to report such transacions to the Financial Inteligence Contre (the Centre” or “the FIC). 23, Interms of section 29(1) ofthe FICA, transactions or activities that Standard Bank and its ‘employees are obliged to report have the following attributes: 234 the bank has received or is about to receive proceeds of unlawful actives or Property which Is connected to an effence relating tothe fhancng of terrorist or related activites; 232 a transaction or series of transactions to which tis party, 232.1 Taciitated ori Hkely to faciitate the transfer of proceeds of unlawful ‘activities or property which is connected to an offence relating to the financing of teroist and related acts 2322. thas no apparent business or lawful purpose; za2a |s conducted forthe purpose of avoiding givin ree to a reporting duty under the FICA: 2324 may be relevant to the investigation of an evasion or attenpted {evasion of a duty 1 pay any tax, duty or levy imposed by legislation : 1%,‘administered by the Commissioner for the Scuth African Revenue Service; 228. relates to an offence relating to the financing of terrorist and related activites; or 2328 it nas been used or is about to be used in any way for money laundering purposes o to facilitate the commission of an offence: relating to the Financing ofterorst and related avis, 24, hist a bank i oblige, unde pan of irinal prosecution should tbreach this eblgation in tems of section 52 ofthe FIG Act quoted below, to make a Repot to the Centre in respect ofthe above types af transactions, secon 293) of he FIC Act expressly prohibits 2 parson who makes ois obliged to make a Report in terms of ston 26(1 of he FIG ‘Act rom disclosing the making of @ Report or the contents thereof to anyother person, incucing a person who i the subject of @ Reper. follows therfore that Standard Bank does not have the iberty to voluntary siglose the fact that made orci not make & Report about or concerning Oakbay and is associated entities. 25. Attention has been drawn to the provisions of section 28(3) ofthe FIC Act because any unauthorized disclosure by Standard Bank or any of is offeals would constute a contravention of section 29() ofthe FIC Act and be an offence, in terms of section 63 of the FIC Act, that could attract a sentence of imprisonment of up to 18 years, ora fine of up te R100 milion, n terms of eaction 68 ofthe FIC Act. . &,,28. Adaitonaly section 82 ofthe FIC Act reads a follows: "82 Failure to report suspicious or unusual transactions. (8) Any person who fails, within the prescribed period, to reoart fo the Centre the prescribed information n respect of a suspicious or unusual twansaction or series (of transactions or enquity in accordance with section 29 (1; o (2), '8 guity of an offence. (2) Any person referred to in section 29 (1) or (2) who reasonably ought fo have ‘known or suspected that any ofthe facts referred to in section 29 (1) (2), (0) or (o) (oF section 29 (2) exists, and who negligently fats to report the prescribed information in respect of a suspicious or unusual transaction or series of transactions or enquiry, is gully of an offence.” ‘Section 68 ofthe FIC Act provides for a criminal penalty for non-compliance with the sald section 52 of upto 1 years imprisonment ora fine of upto R100 mio. 27. tis submited that lopic cictates that, faced wit he risk ofciminal prosecution shoul it or they merely “nepigenty faite report transaction that tor they Yeasonably ought fo have known or suspected suspicious or unusual, a bank's anc its employees! best avoidance ofthis skis fo terminate dealings vith customers who engage or are likely to engage in transaction that are unusual or suspicious. As pointed out above, i and tothe extent that @ bank terminates @ customer relationship for this reason, i would be Prohibited by law from disclosing that fact to any person incising the applicable customer Disclosing that fact would itself expose Standard Bank and its employees tothe sk oferiminal prosecution 28 Section 39 ofthe FIC Act provides that a certficate issued by an ofcial ofthe Centre thet information specified inthe certificate was reported or sent to the Centre in terms of ‘section 28,28, 30(2) oF 31 ofthe FIC Act is, subject to section 38(8) of the FIC Act, on its : Sy2, 0, 2m ‘mere production in a matter before @ court, admissible as evidence of any fact contained init of which direct oral evidence would be admissible, itis assumed thatthe information lsclosed to the Applicant in annexure “P2" of the founding afcavit was colcted by the Conte in toms of the FIC Act and conveyed fo him in tems ef section 38 thereot Annexure “P1" ofthe founding affidavit states that tis the case In March 2008 the Centre issued a Guidance Note, known a8 “Guidance Note 4 on Suspicious Transaction Reporting’ (he Guidance Note) It was published in the Government Gazette under Gazette number 30875 dated 14 March 2008, It explains itor ‘aia the practical implementation ofthe ebigations sourced inthe FICA with regard tothe reporting of suspicious vanssctions and provides guidance onthe nature of “euspicio’ 9s referred tin section 29 of the FICA. Inits opening secton, the Guidance Note states that itis imperative that banks that come into contact wih nancial transactions tht ere potentially irked to money laundering or terrorist financing must report those transactions to the Cente, The reporting of suspicious and unusual transactions is regarded as an essential element of the anti ‘money laundering program for every county. Part 3 of the Guidance Note explains the circumstances that tiger the obigaton to report. it makes it ler that the ebgation appes where there i actual knowledge as well as in cxcumstances where a mere suspicion exists. While the FIC Act does not define what constitutes a suspicion, the Guidance Note slates thatthe “orcinary meaning ofthis term includes [the] state of mind of someone wo has an impressien ofthe existence or presence of something or who boeves something without adequate oro, othe nation of 2 feoing that something is possible or probable. This implies an atsonce of proof that 2fact oxsts..the starting point fo considering whether circumstances give rise to @ suspicion would be when those circumstances raise questions or give rsa fo discomyor., ‘apprehension or mistrust" 32. The Guidance Note futher expains that although the notion of a suspicion is subjective, the FIC Act nroduces an objective element by inroducing the phrase “ought reasonably {fo have known or suspected’ in section 28(1) ofthe FIC Act. Paragraph 38 of the Guidance Note states that, Tal particular cefegory of transactions that are reportable under section 29(1) ofthe FIC Acts transactions which a person anows or suspects fo have no apparent business or latul purpose. This refers fo stuatons where customers ‘enter nto transactions that appear unusual in busines context os where isnot clear that purgose ofthe transaction() is awful In order to dently stuatons whore customers wish to engage i these ueusual transactions 2 person woul! have fo have some background information as f0 the purpose of @ wansacton and avalvate this against several factors such a the size and complex ofthe transaction as wel as the person's knowledge ofthe customer's business, ancia history, backround and behavior. 33. Part 4 of the Guidance Note sels out examples of indicators of suspicious and unusual transactions, which include the following: ma ‘Deposits of funds witha request for their immeciate transfer elsewhere; 332, Unwarranted and unexplained international ransters; m3, ‘The payment of commissions or fees that appear excessive in relation to those 7 Sp334, 336 7. 338, a8. sat 4 ‘normally payable Lack of concer about high commissions, fees, penalties, ef. incured as a rasuit ofa particular type of transaction or particular method of transacting: “Transactions that do not appear o be in keeping with norm industy practices Purchase of commodities a prices sinifcanty above or below market prices UUnnecessariy complex transactions; LUnwarranted involvement of structures such as tusts and corporate vehicles in transactions ‘A transaction seems to be unusually large or otherwise inconsistent wih the customer's fancal standing or usual patter of activities; Buying or seling securities with no apparent concem for making a profit or avoiding a loss; Unwarranted desire to involve entities in foreign jurisdictions and transactions, [As can be seen from the above synopsis, the scope of @ bank's obligations and the ambit mMof the nature ofthe transactions that must be reported upon are wide. These obligations sare considered 08 necessary 10 achieve the overall objectives ofthe FIC Act, South ‘Alice's compliance with international best practices and standards under the BIS's Basel Rules and the FATF's recommendatons. To the extent that Standard Bank would have ‘been required to submit any reports under Section 28 tothe FIC relative to Oakbay andits ‘associated entities, the submission would have been in respect of tansactons described in the Guidance Note. Due to the length ofthe Guidance Noe, on relevant extracts of the Guidance Note are annexed hereto marked "SBS" 35. Relevant legislation that, apart from the FIC Act, hada bearing uson Standard Barks decision to terminate banking relationships with Oakbay and is associated entities isthe Prevention of Organized Gre Act 121 of 1898, as amended (POCA), It prohibits, intr ‘al, receptor dealing in the proceeds of unlowful activites. POZA defines “unlawful ‘actviis" in broad terms 38. POCA makes it an offence for any person fo deal with any propery (including funds) that helshe cught to suspects the proceeds of unlawful activities. A person charged with such ‘an offence is Hable to a ne net exceeding R100 milion or to imprsonment for period not exceeding 30 years 37. Section ZA of POCA avails any parson charged wih receiving funds suspected to be the proceeds of ere with he defence thatthe suspicion was reported inder the FICA. Thus ‘a bank and its employees, faced vith suspicious acy by a cusemer, are required by {aw to either not deal wih that customer o,f they choose to deal wih the customer, bear {Sm38, 38, 40, the rok of prosecution under the FICA andlor POCA shoulé they fall to repo each suspicious transaction that they ought to have detected. Again, the best method of voiding any such prosecution i o nat have dealings wih customers who have engaged in oF are tkely to engage in suspicious or unusual transactions identiied as such in ‘accordance withthe Guidance Note Further lepslation which is of relevance i the Prevention and Combating of Corrupt ‘Activities Act 12 of 2008 (PRECCA’). It prohibits, intr ala, any participation in coctupt sctities. Italo provides for compulsory reporting obigatons relating to coruptacthvties that are independent of thse regulated by the FIC Act Section 341) of PRECCA oblges every person whe hols poston of authriy and who ‘ought to have knowledge or suspicion of the commission of eran offences fo the value ‘of R100 000 or more to report such effence to the Diectorab for Priaty Crime Investigaton under pain of criminal prosecution fr fling to do 80. A report in terms of section 26(1) ofthe FIC Actes from a report under section 34 of PRECCA, PRECCA exposes banks or ther ofcials to criminal prosecution if they fall to detect and report corrupt activity by customers, let alone themselves have dealings wih customers whom they ought to know oF suspect are engaged in corrut activity. Agi the best method of ‘veding any such prosecution sto not have dealings wih customers who engage or are kal to engage in corupt activites. |, together wih Standard Bank's Chief Executive Officer, Mr Tshabalala, represented Standard Bank in a mesting on 5 May 2016 (more fuly described later inthis afdavit) ‘ith two ofthe three members of the Commitioe that was tasked t look into the banks Closing of Oakbay related accounts. During the course of that mesting, | directed the Dyattention of those Ministers (Ministers Zwane and Oliphant tothe above ntemational best practices and standards and domestic reguatory obigations of Standard Bank and explained the role that hey play in Standard Bank’s decision to late accounts. None of the Ministers present at that meeting suggested that those obigatons dd not apply to Standard Bank, or canbe ignored by it without incuring any regulary or ermine! penalty. Mr Tehabslala confirms these facts in his confirmatory affidavit. 41, Moreover. the Ministers did not question the vabdity of the sppicable legislative Instruments and regulatory framework which estabish the sid regulatory obigations. Nor ‘dd etre of them indicate that thas became necessary to establish juscil commission of inquiry inquire into the closure by the banks ofthe Oakbay aeceunts, notwithstanding the existence ofthese regulatory obigatons. 42 Standard Bank has been advised, and respectuly submis, that compliance by i with ts reguiatory obligations in terms of the above domestic and intematonal standards and practices, a8 well as is decision to terminate its relationships with Oakbay and its associated entities in compliance with those obligations, cannct cortiule @ permissible and jstiiable basis o threaten the institution ofa juscial commissen of inguiry ino such compliance, orrevew the applicable and existing regulatory framework To the extent that these threats have been made and repeated, Standard Bank has been advised that they ‘are unlawil and invalid and, in hi regard, Standard Bank prays fer the rele set out in annexure "S81" Potential adverse consequences fo SBG, including Standard Bank 43. This action deals with the crcumstances of Standard Bank, as @ member and subsiciary : Si,44 4s, of Standard Bank Group Limited ('SBG), relating to the drastic sonsequences which ‘could flow should Standard Bank not comply, whether due to neglgence on its part or Interventions ofthe type being resisted by the Applicant, wth the itemational standards ‘and is domestic regulatory obigation. ‘S86 is registered as a bank canting company under the Banks Act and its shares are listed on the USE Securities Exchange. S8G conducts banking under the Standard Bank and Stanbic Bank brands thaugh licenced and regulated subsiaries, branches or representative offces in wenty Afican coutries,the United States of America, the United kingsom, Braz, Dubs, Jersey, Ile of Man, Hong Kong and China, Naturally alo these subsidies, branches and representative offices are obliged to comply with, inter ai, the {ant-corupton and antimmaney laundering laws of each applicable jursciction at al times. To ilsirate the consequences of any perceived non-compliance, reference is made tothe {act that in 2012 SBG's subsidiary in Tanzania employed a local conpany part-owned by “poiticaly exposed persons" (or ‘PEPS") to assist that subsiiary and another, Standard Bank Ple in London, in jointy procuring @ sovereign dabt raising mandate from the Tanzanian goverment. That employment was deemed to be suspkious by the Serious Fraud Offce (the SFO") of the United Kingdom and the Department of Justice (DOM") ‘and Securities and Exchange Commission SEC") in the United States. The SFO and DOs opened investigations ito possible corruption. The SEC openec an investigation into whether American investors in the sovereign debt raised had been misled by a non- lsclosure ofthe involvement ofthe mentioned PEPS. Ths culminated in 2015 when the ‘Crown Court of Southwark, n the United Kingdom (the Crown Court) under case number [U20150854, celvered a preliminary judgment folowing @ hearing on 4 November 2018, a copy of which is annexes herete marked SBE", and a final judgment dated 20 November oO : By,2015, a copy of which is annexed hereto marked "SBT", endorsing a Deferred Prosecution ‘Agreement (the DPA"), concluded by Standard Bank Pic with the SFO, in terms of section 45 and schedule 17 ofthe Crime and Courts Act 2013 ofthe United Kingdom. ‘The DPA concluded between Standard Bank Plc and the SFO resolved an indictment ‘owing from the sald employment of @ company part-owned by PEPS in Tanzania, The nature of the indiciment is contained in paragraph 19 of the preliminary judgment (annexure "S86"; “Stondara Bank Pi, now known as (CBG Standard Bank Pe, botwoon 1 day of Lune 2012 and the 31" doy of March 2013, fale o preven: a person or persons associated with Stondard Bank Pl, namely Stanbic Bank Tanzania Limited andlor Bashir Awale andlor Shose Sinara, trom commiting bribery in Creumstances which they intended to obtain or retain busiress or an advantage in the conduct of business for Standard Bank Pl, namely by o @ Promising andor ging EGMA Limited 1% ofthe monies raised orto bo ‘rlsed by Standard Bank Plc and Stonbic Bank Tanzania Lnited forthe ‘government of Tanzania, where EGMA Limited was not proving any or any reasonable consideration fr this payment; and Intending thereby to induce @ representative or representatives of the goverment of Tanzania t0 perform a relevant function or ectinty ‘improper, namely, showing favour to Standard Bank Plc and Stanble Bank Tanzanis nth process of appointing or rtaning them in order to ‘alse the said monies.” /®,a. 4, a9 ‘As 2 consequence of that indictment, and in order to lawiuly dispense with the prosecution, Standard Bank Ple concluded the DPA that ha tobe erdorsed by the Crown Court. The essence of the DPA can be gleaned from the two judgments in annexures "886" and "SBT. “The judgments ofthe Crown Court make clear the mulijusdicional nature ofthe alleged loffences in question. Bearing in mind that the alleged bribery ofence took place in ‘Tanzania, but exposed a Standard Bank entity to possible prosecutions in the United kingdom and the United States of America, the DPA imposes upon all members of the S86, including, Standard Bank an enhanced consciousness and responsibilty Concerning thelr compliance with ant-money laundering and antibribery laws and regulations. Inits judgments, the Crown Court (per Sir Brian Leveson, the second most senior judge in the United Kingdom) found thatthe charge against Standard Sank Pie (being the charge under the UK's Bribery Aet of aling to prevent an ae of ritery by an associate) was justiied because, notwithstanding the SFO's charge having been based upon circumstantial evidence ony, employees of Standard Bank Pic had not been adequately trained to detect, and act upon, 2 number of “red fags" indicating that brbery by an associate in Tanzania could occur. The DPA provided for payment ef compensation and ‘voluntary fines of some USS38 milion (inclusive ofthe ine levied by the SEC), a review by an independent expert of Standard Bank Pls pobcies and training relative to bribery ‘and coruption and prosecution of the charge tobe suspended for ves years, whereafter the charge wil be withcrawn i Standard Bank Plc has complied wit al of ts obligations Lnder the DPA inthe interim, Sast 52, ‘As mentioned already. the 004 also investigated the same Tanzanian transaction for possible vilations of the United States’ Foreign Corupt Practices Act and the SEC investigated possible violations ofthe USA's secures laws. Because of the fact that the ‘SEG subsiiaries involied had seltreported their own suspicons to the relevant suthortes, conducted and dacosed the results of their own internal investigations, fuly co-operated with the resuitant investigations by the SFO, SEC and the DOJ, and then voluntarily entered into the DPA, the DOL closed its investigation into the matter. t cautioned, though, that it could re-open the investigation it ether irformation of possible contravention of the Foreign Comupt Practices Act were to sufece, Separately but simultaneously, and for the same reasons, the SEC offered to enter into a deferred prosecution agreement to dspense with a charge, in essence, that Standard Bank Pic had ‘omited to disclose to American investors that PEPs had been inveed inthe soverelan deb raising ‘Since all members ofthe SG are associated wth one ancther they are each required, at 2 result of the scrutiny ofthe SFO, SEC and the DOU, to be extra-viglant against ignoring ‘ed flags that indicate possible coruption or money-laundering or boing used in any way to faciitate corruption or money taundering, Ie should smphasised that the iniciments ofthe SFO and SEC ayainst Standard Bank Pie, as were resolved by respective DPAs, were not based upen clrect evidence or confessions of conuption in Tanzania but on inferences drawn from circumstantial evidence voluntary disclosed by members ofthe SBG group pursuant to their reporting obligations. The mentioned engagemenis with the SFO, SEC and Ded iustrate the global reach of ant-money laundering and an-rbery lava and law-enforcement agencies, the ire consequences that can flow if red Nags (or cecumstantal evidence) of possible ( Secorruption ara evident but ignored and the benefits (euch ae the nensproeecuton autcome of @ deferred prosecution agreement) that can be derived from compliance with reporting ‘obligations when suspicions of unlawful activites do arise Failure to comply with regulatory obligations and standards 53. Compliance with these interational ané domestic obigations by Standard Bank is not only a requirement of aw: In order for Standard Bank to patlpate inthe global fnancial system, and thereby in international ade and investment, is Inperatve that South ‘Aica’s regulatory regime Is perceived to be compliant with intemational standards, including the Base! Rules andthe recommendations of the FATF, and thet South Afia’s banks are not perceived to be too risky by the international banking community, 54, Standard Bank, and indeed all banks in the Repub, requires relationships with correspondent barks (as more fuly described in the BIS's repo on “Corespondent Banking’ mentioned below) in jidctions with which South Atica trades inorder to be par of the global financial system and enable South Aficans to make and receive payments in foreign currencies, These correspondent banks are required by law to be concemed not ony with compliance wth their oun ant-meney laundering (AML) and antibbery and corption ABC") laws but also withthe quaty of the AML and ABC laws and reguation inthe jurisdictions of ther respondent banks, avd withthe quality of compliance with AML and ABC laws by their respondent barks. More pointedly, ‘correspondent banks are becoming increasingly averse to providing banking services to respondent banks tat are perceived tobe hgh-sk themselves fran AML andlor ABC perspective andlor ae perceived to operate in high risk jurisdictions, In ths contest @ high-skjurslction or country is one where AMLIABC and combating the financing of / &55, ‘serlso ss santos Cast ste as terrorism (CFT) laws are perceived tobe inadequate andlor not adequately enforced ‘The Republi is gonealy regarded as having AMLIABCICET laws that are compliant with the Basel Rules and the FATF's recommendations and enforced to an acceptable standard. However, should Government subvert that enforcement by, for example, seeking to overun Standard Bark’ decison to terminate a banking elatonship that was made in aoordance wit applicable AMLICETIABG laws it oul, fr the reason set out below, cause South Africa to be reraled by iis carespondeni banks andr their regulators to a highsrsk uiscicton with attendant esrption ofits ness t international financial markets ‘A July 2018 report by the BIS's Committee on Payments and Market Infrastructures tiled ‘Correspondent Banking’, a copy of the relevant extracts of which are annexed hereto ‘marked °SB8", contains the following useful explanations and observations as to why this could ovcur: ‘As paragraph 2.1 ofthe report “Correspondent banking can be defined, in general terms as "an ‘rangement under which one bank (correspondent) holds deposits ‘uned ty other banks (respondents) and provides payment and otter services fo those respondent banks": The ECE uses a sinar basic, defintion in iis comesponden! barking vey, referring to “agreements or contractual relationships between banks to provide‘payment services for each ther”. A more detled deintion by the Wotsberg Group establishes that ‘olcorrespondent Banking is the ‘provision ofa curent or other lability account, and elated services, to anather financial institution including affiates, used for the execution of tintpary payments and trade fnance, os well as is conn cash clearing, iquity management and short-term borrowing or investment needs ina particulercurency”. At the mest basic level, correspondent banking requires the openirg of accounts by respondent barks in the correspondent tarks' books and the exchange of messages to sotle transactions by ceding and debiting those accounts. All these definitions highlight the main components of conespondnt banking: a bilateral agreement between two banks by which ane of {hem provides services tothe other, the opening of accounts (by the respondent in the books of the correspondent for the provision of ‘services and the importance of payment servees as a core function of correspondent banking. As the ECB definon highights, these relationships are frequently reciprocal in tht each institution provides services fo the other, noma in diferent curerces. Correspondent banking is especially important for cross-borde: transactions, as is Importance for domestic payments within @ snl jurisdiction has diminished groally due to the use of Fancial markotinkasinuctures. (On a cross-border level, however, corresponden’ banking is essential for customer payments and for the access of vanks themselves fo foreign fnancal systems for services and products that may not be ‘avaliable i the banks’ ov jursatons."‘The executive summary ofthe report “Through correspondent banking relationships. banks can access financial services in diferent jurisdictions and provide cross-border payment services to thir customers, supporting Intemational trade ‘and financial inclusion.” “Banks hove tradtionaly maintsined brood networks of corespondent banking relatonshins, but there are growing indications that this stvation might be changing. In particular, some banks providing these services are reducng the number of relationships they maintain and are establishing few naw ones. The Jimpact ofthis trend is uneven across jurisdictions and banks. AS @ resut, some respondent banks ae likely to maintain relalonshies, whereas others might risk being cut af from itemational payment notworks. This implies threat that cross-borabr poymant networks might fragment and that the range of aveletle options for these transactions could narrow.” “Rising costs and uncertainty about haw fr customer de eiignce should go in order to ensure regulatory complance (Le. to what cextont banks nood to know thr customers’ customers ~ the socalled KYCO) are cited by banks 2s among the main reasons for cuting back ther corespondiont relationships. To avoid penaties and ‘olted reputational damage, comespondent banks have developed ‘an increased sensitnty tothe risks associated with correspondent (%,67. 58, banking. As a consequence, they have cit back services for respondent banks thal (i) do not generate sufficient volumes fo ‘overcome compliance costs; (i) are located in juisditions perceived 2 100 sky il) provide payment services to customers about which the necessary lnformation for an adequate risk assessment is not ‘avaliable; or (i) offer products or services or have customers that pose @ higher risk for antismoney lsundering/combating the ancing of terri (AMLICFT) and are therefore more cificul fo manage.” ‘The impact of this de-icing is well documented by organizations including the BIS, the United Kingdom's Financial Conduct Authority FCA’), the Intematonal Monetary Fund (CIMF>) and the World Bark The withdrawal of corespondent banking services has ‘aleady adversely impacted counties, financial insttulons and business sectors considered tobe too risky. ‘A February 2016 study on the “Drivors & Impacts of Derisking" was conducted for the FCA, Due to the length of the study, @ copy of ony the relevant ecract of the study is annexed hereto marked “SB9", It shows thal the FCA Is aware hat. in recent years, Intemational banks have removed bank accounlservices trom clients associated with higher money laundering isk This process, termed "deisking”, has been attributed to the increasing overall cost of complying with regulatory requitements. These Include prudential and conduct obligations as well 2 the threat of enforcement action for faling to mest obligations in rl (auucrn, fon to ant-money launderinglcombatting fnancing of terrorism oat tn ee fot ele roe aya bantam ing ahcerehn Pov ets aap ie oer50, 60, 61 a. ‘The FATF, of which South Attica ie a member, sete the inleratonal standards for AMLICFT. A declaration of the Ministers and Representatives of the FATF states that ‘elective action against money laundering and terest fnarcing, inctuding both preventative and lew enforcement measures, is essential fer securing a more tansparont ‘and stable intemational fancial system.” Imtematonal banks ae trying to do what they believe is expected of them, under the risk: based approach to AMLICFT, by exiting relationships that present too high a perceived Fisk of being abused for the purpose of fnancal ce, ‘Tho FCA report shows that its researchers were fold that banks are seeking much more ‘specc guidance on managing high-isk relationships ofthe types that result in account fexts, i there is cris from regulators and government that they are behaving improperty. ‘SEG and its banking subsidiaries have been impacted directly by de-sking in a number of Altican counties in which they operate. These include Angdla, Lesotho, Malawi Mauitius, Swaziland, Tanzania, Zambia and Zimbabwe, The June 2016 IMF Staff Discussion Note tiled “the Widhdroual of Corespondent Banking Relationships: & Case for Polity Action’ (the IMF Note’) outines. how correspondent banking relationships have been terminated in some jurisdictions Emerging matkels and developing economies in Aca have been alected. Decision to withdraw are based on considerations that include changes in the regulatory and enforcement environment. International barks are required to compy with economic and trade sanctions, AMLICFT requirements and ant-bribery and tax evasion regulations fa67, applicable In the jurisdiction in which they operate, as well 2s with those in their home jurisdictions. In the IMF Note it i acknowledged thatthe withdrawal of corespondent banks has reached 2 cial level in some counties which could have systemic impact i lunacressed. Coordinated efforts by the public and private sectors are called for by the IMF to mitigate the risk of fnancal exclusion and the potential negative impact on financial stably, The IMF Note records that timely implementation of the Financial Stability ‘Board's 2015 action plan endorsed by the G20 Summit wil be ritcal ‘The IMF Note includes @ case study on Angola where the wthtraval of corespondent banks, due to Angola being perceived a8 a high-risk jurisdiction, Fas reached a cial level It observed that large global bank had withdrawn U.S, Dollar correspondent banking relationships from all Angolan banks (including Standard Bak Angola) and that a European bank had stopped clearing client payments in U.S. Delars forall Angolan banks. As 2 result, a single European bank had become the sole provider of US, Dtiars to Angolan banks. ‘The U.S. Doliar corespondent bank which withdrew is coresponcent services from all ‘Angolan banks, inclusive of Standard Bank Angola, made reference tothe “nreesingly ‘tingont international reguatory compliance environment thet 18 characterized by heightened compliance expectations as well as more feqvent and extensive administrative fines" and the “alobal focus that regulates are placing on financial crime ‘complionce" ‘Since publication of the IMF Note the aforementioned single Eurepean bank providingUS, Dolars clearing has also now formally exted the county. Angolan banks are therefore now being forced to ofer U.S. Doar payments and rece for their customers through their European correspondent banks, resulting insignificantly higher cost. The Central Bank of Angola's interventions inthe foreign exchenge market are now primarily in Euros with many extemal trade transactions increasingly invoiced i Euros, This loss of correspondent barks wiling to make of receive U.S. Dollar payments forthe Angolan banks and their customers has undermined the financial system in 2 county already ‘strugalng with the macroeconomic impact of lower el prices, weak profteity and high levels of non-performing loans. 68. One point of mentioning Angola's predicament, as noted by the IMF Note and directly ‘experienced by Standard Bank Angola is to illustrate how severe the impact can be when the majority of intematonal banks offering correspondent services 2ercsive @ county to be highsisk from an AMLICFTIABC perspective, with a consequental withcrawal (or de- risking) fom that jurisdiction and stfing of financial lows and wit trade and investment ‘Due fo the length ofthe IMF Note, ony the relevant extracts of the IMF Note are annexed hereto marked "S810" 163, Another pont of mentioning Angol'spreticament is to isp the beief thatthe closure of bank accounts in compliance with domestic obligations and intematonal expectations could have had a negative impact on ivestor confidence in South Aca. As appears fom the statement issued by Minister Zwane on 1 Seplember 2016, the Commitee was allegedly established to investigate closure ofthe akbay elated accounts because ofthe “the impact thatthe actions would have not only for job losses fr 7590 South Aficans but ‘so tne impact tht it woul have on investor confidence”. Standard Bank submit it to be Fs acy om Naa, au fl og en areas 2eI 68 pt Pose lt 2552p Ste rh ase uae Sve atu os esa : &70. n. clear that the conduct of the barks wil have, night of the de-isking explained above and its demonstrable negative impact on counties such a8 Angola, stengthened rather than weakened investor confidence in Souh Afica. It is futher submitted that 1 have lomonstiated by reference to the Tanzanian sovereign debt casing that international regulators of vestments such as the SEC would regard Standard Bank’s conduct as ‘rometing rather than prejuicing South Africa's reputation as an investment destination Like any other bank, Standard Bank funds its activites, from amongst various sources, by borrowing money, especialy foreign curencis, from international banks. Because ofthe bal reach of Intemational standards such es the Basel Rues and the FATF's recommendations it has for @ number of years been an invalate practice for these international lenders to include in their loan covenants @ commitment o comply wth all applicable anti-money laundering and anti-comupton laws. Breach of these laws would render all oans containing such covenants immediately due and payable. An example of ‘these covenants can be found at clause () ofthe extract of the france agreement that is annexed hereto marked “SB11". From this it can be seen that kom an Intemational finance perspective Standard Bank’s compliance with South Aficals laws in this regard enhances rather than detracts ffom South Alvcs's reputation a an investment destination, During November 2016 the Basel Commies issued proposed revisions to ts guidelines ‘on ‘Sound management of risks related fo money laundering and feancing of terrorism hich | mentioned eater in this affidavit. The stated purpose for the proposed revisions to the Basel Committe's guidelines isthe folowing “The purposes of the proposed revisions is to ensure that the banks conduct : & AoAcorrespondent banking business withthe best possible undorsiarding of the applicable requirements regaring_ antzmoney laundering al countering the financing of terrorism. The clarifications are proposed as the intemationel communty has boon Increasingly concemed about deviskng in comespondent banking, since 2 decline in {ne numberof carespondent banking relationshios may affect the abit 0 send ond receive intemationa payments, or erve some payment flows underground.” 72. This document is mentioned in order to highlight the real and poteilcisastrous effects that could occur to South Afica’s banking sector if South Aca is perosived to be too risky trom an AMLICFTIABC perspective. As the revision nots, the Internationa banking community is becoming increasingly concerned about de-rskng in correspondent banking, aniseue deat with above, 73, The proposed revision states that one of the risk indicators that sorespendnt banks should consider i “the quality and efetveness of banking regulation and supervision in the respondents county (especialy AML/CFT (Anti:Money LaunderingtCombating the Financing of Terrorism] laws and regulations) and the respondeats parent company country where the respondent is an afte” In the context of what has already been ‘utined in this afdav, iis cear that an etempt to render less efectve South Africa's AMLICET laws would lad to South Afican banks being peresived as more risky for purposes of correspondent banking. A copy of the relevant extract of the proposed revision documents annexed hereto marked “SB12~ ‘Standard Bank's termination of relationship with Oakbay and associated entiesm4 In this section the process and considerations which led to Standard Bank's decision to terminate the bank-customer relationships with Oakbay and its associated entities, are sat ‘ut, I begin by making bref observations on the legal relationship between a bank and its customer, | then proceed to reference the yardstick that is summarised by the ‘Ombudsman for Banking in respect of termination of that relationship; and thereafter I escribe th relevant facts and considerations which gave ris tothe noice of termination, {and Standard Bank’s subsequent implementation thereof, The legal relationship, 7, 78. 7. From a reading ofthe Applicant's founding affcavit iis apparent tat the Applicant has received legal opinions from his legal represeniatives on this aspect of the case. Standard Bank's legal representatives have advised that they correctly es out the lav For the present purposes Standard Bank has been advised and aczepts thatthe conect legal postion is summarised in the decision of the Supreme Court of Appel in Bredenkamp and Others v Standard Bank of SA Ltd 2010 (4) SA 468 (SCA), in paragraphs 53 to 65 Recent, this Honourable Court had eccasion fo express Hel on hat legal postion, in the contest of bank accounts of Poltcally Exposed Persons (EPS) and ther lated entiies, The nettal ction ofthat case is Hlongwane and Others y ABSA Bank Limited land Another (75782/19) [ZAGPPHC] 826 (10 November 2016) | direct attention to paragraph 30 of that judgment, given ts stking instuctveness to the facts ofthe present cate, There, this Honourable Court helt {Su"0) Furthermore, i is apparent that the frst respondent made the decision to close the applicants’ account after it became apparent that ‘he first applicant had become ® PEP, there was not only a ‘commercial but also a reputational risk to the first respondent in keeping the frst applicant and his related entities as clionts. The frst respondent had no obligation to retain a alent whose monitoring in terms of money laundering measures put in place would be more ‘onerous when compared with the benef, in tems of fees, would receive trom the applicants. | am of the viow that the fst ‘respondent's bonafides in deciding (0 cose the appicents' accounts cannot be questioned. nthe Brodenkamp mater (supra) where the ‘court was faced with fats similar to the facts in this case, the court ola that 165] The appetants’espanse was that, objectively _pe0kng, tho Bank’ fers abouts reputation and business risks wore unjustiod. Fd nat Dolove i is fr @ cour o assess whether or nota bona fide business decision, which ison the face of i reasonable and rational, was objectively wrong’ wherein the circumstances no public policy considerations are involved.” 78, Cakoay, its related enties and ts shareholders fall into the category of pltically exsosed persons (or PEPS), given their close connections and influence with several publi officials fand public entities, a8 well as allegations of their improper or inappropriate business : | Sprelationships with several pubic entities. As | explain below and vaving due regard to '88G's learnings frm its association wih a PEP owned entity in Tanzania this sone (bt by po means the only one) of the considerations which affirmed Standard Bank's decision to implement its notice to terminate ts banker-customer relationships with Oakbay and its acociated ents ‘The Ombudsman’s yardstick 7, During October 2016 the Ombudsman for Banking Services issued Consumer Information ‘Note Number 14 relating to the closure of banking accounts which efited “Closure of Bank Accounts ~ Circumstances under which Banks close Customer's aecounts' (the Information Note”). A copy ofthe Information Note is annexed hereto marked “SBA3". it summarises the various pieces of legislation that are applicable andthe responsibities of banks in instances of suspected criminal activity. It notes a study bythe United Nations Office on Drugs and Crime that estimates thatthe sum of money laundered globally n one year is 2% to 5% of global GDP or USDB00bilion to USD2 tlio, The Information Note highlights the fotowing relevant laws, proposed laws, conventions, recommendations, codes and concepts ‘The United Nations Convention against Corupton, Ace 68(1) of the United Nations Resolution 5814 af 31 October 2003; “The Financial Action Task Force's recommendations on money laundering: 1%,204. ens. 806. 208 208. 20:10, ‘The Financial Inteligence Centre Act “Poltcaly exposed persons’. Tris term 9s applicable in nancial regulation describes “someone who has been entusted with @ prominent pubic function’. “The definition of the term includes the family members ani close associates of polticaly exposed persons. These persons “generaly presenta higher risk for Potential invoverent in bribery and compton by vitue of their postion and Influence that they may hokt The Financial Inteligence Centre Amendment Bil(338 ~ 2018) ‘The Prevention and Combating of Conupt Activites Act 12 ef 2004; “The Banks Act 94 of 1990, ‘The Inspection of Financial institutions Act 80 of 1986, “The Prevention of Organised Crime Act 121 of 1996; and “The Code of Banking Practice. Clause 7.3 ofthe Code of Banking Practice deals with the closing of banking account makes it clear that a bank reserves & right to protect its interests ints discration. In general acccuts are closed ater reasonable notice has been given pir tothe closure ofthe account. However certain circumstances might impel 2 bank to close an account without notice & Mhat 2, 3, Were it is compelled to do 80 by law or Intemational best practic, the account hhas not been used fora significant period of time or the bank has reasons to believe that the account is being used for any legal purpose “The Information Note records the contractual nature of the relationship between a bank ands customers. I sates that aterm within the contaciual lationship wtih allows the bank a wil subject only to giving reasonable notice to terminate te contract, provided the termination is proceduraly fair and does not offend constittional values, 1s not Unusual, enerous or unconsconable. In conclusion, the information Note states that banks fare enitled to close accounts in terms of the contract that establishes the banker- customer relationship subject to certain conditions. Moreover, hanks are obliged to do 60 in tems of domestic and Intemational law obligations when paricuar situations are Present ‘These Intemational standards and best practices and domestic obligations make it clear that Standard Bark should not only be circumspect in ts dealings wth persons who are polcaly exposed, but should also take active steps to avoid the rossibiity of improper criminal conduct pursvent to those relationships. Inthe present case, Standard Bank gave natice on 6 Apri 2016 to Oakbay and its associated entities ofits inieton fo terminate the banker-custoer relationships with them as from 6 June 2016, a natce period of two months, On the later date Standard Bank ofcialy terminated those relationships, The next section explains the opportunity furnished to representatives of Oakbay to make representations to Standard Bank on why the relationships with and ts associated entties should not be terminated. Having considered those representations, Standard Bank elected to abide by its notice of (Sutermination as from 6 June 2016 Relevant considerations 8s a7. ‘While Standard Bank informed Oakbay ofthe reasons fr its decision to terminate the banking elatonship wih Oakbay and its asseciated entities on 1 Jure 2016, the notice of intenton to tenminate the relationship was given on 6 Apri 2016. Inthe letter of 6 Apr 2016, Standard Bank stad that would, with elect fom 6 June 2016, terminate the banking relationship with Oakbay and is associated entities. A sopy of the letter is annexed marked “S814”, The names ofthe affected enttes that ate not respondents in this application have been redacted de to confidentiality considerations ‘On 13 April 2018 Standard Bank communicated with each of che affected entites Informing them of ts decsion to terminate their accounts with effect from 6 June 2016. “The individual leters of termination that were sent tothe respondents inthis application ‘are not attached, but should they be require, copies wil be provided In a letter dated 14 April 2018, Oskisay represented to an intemaional shareholder of ‘SOG that Standard Bank’s decision to close the bank accounts would impact negatively fon Oakbay and its ‘potfolo companies, a they would allegedly be unable to pay their “4500 current employees without access to banking services. Cakbay asked for the Intervention of the shareholder, without disclosing to Standare Bank that it had approached this shareholder lo intervene on is behal. (What's more troubling about Oakbay’s conducts tha, in its approach tothe shareholder, & fw8 29, it endorsed a campsign that unjustfably accused Standard Bank of acting in an Luncompetiive manner and of acting in colusion with other banks. Gakbay also attributed racist motve to Standard Bank, as part of big capa, when it decided to terminate the banking elatonshins wih Oskbay and its associated entities. The sccusations were and ae offensive, unlawful and unfounded, ‘Oaks letters, in some respects, similar to the eter that Oakbay set tothe Appicant ‘on 8 Apt 2016 (annexure “A tothe founding afdavit) A copy of Oakbay’s letter of 4 ‘Apt 2016 is attached hereto marked “SB1S". The name of the stareholder concerned has been redacted at ts request; Standard Bank having made an undertaking of confdentaity not to disclose the name of the shareholder fo whom the leter was addressed by Oaktay, (skbay’s letter cast negative aspersions on Standard Bark, They are injurious to the persons that are utimatly responsible fo runing the day-to-day afar of Standard Bank and sought to imprepery influence the bona fide exercise ofthe functions of Standard Bank’ executve management team members. Such conduct affected and inerievably broke down the trust relationship that ought to have existed between Standard Sank qua banker and Oakbay and ts associated entities) qua customer [AS sat out hereunder and in the Applicant's founding affidavit, Oakbay continued to engage in poltical strategies and public campsians to secure the reversal ofthe decision to close its and its associated entities’ banking accounts. An example of the public campaign 1s the press release, annexed hereto marked “SBI” in which Oakbay's attempt to gamer public sympathy and pressure is evident. This was alin an attempt to ‘exert pressure on Standard Bank, amongst others, to reverse is decison, when it was Cy1. 2 legaly ented to terminate its relationships with Oskbay and its associate entties and in circumstances where Oakbay and its associted nities had not sought to legally challenge the decision. tis apparent rom Oakbay's eter of 24 May 2016 to the Apocant (ennexure "fo the founding afdavit that Oakbay obtained legal advice which confirmed ‘hat any attempt to challenge the lawfulness of Standard Bank's decion woul fa Whilst conducting its mecia campaign Oakbay representatives requested that they be ven the opportunity of meeting with Standard Bank to make representations in an tempt to persuade it to reverse its decision. Standard Bank agreed and on 13 May 2016 | together with a number of senior officials of Standard Bank, held 8 meeting with five officials of Oakbay ands associated entities. The meeting took late at Standard Bank's offces in Rosebank, Johannesburg, Standard Bank agreed to consider Oakbay's representations aftr the meeting and convey the result in due course (n 24 May 2016, and befor Standard Bank had conveyed any postmeeting decision to ‘Oakbay, Standard Bank receled a eter (the letter is curently incarecty dated § December 2016, being the date it was printed by Standard Banks legal representatives) ‘rom Oak's atiomeys in which they threatened to bing an urgent court application ‘against Standard Sank unless it Kept open the Oakbay group of companies’ accounts (eending the institution of Iigaton proceedings, alematvey a complaint to the ‘Competition Commission), and confirmed that it would do so atte 12500 on 24 May 2016 i formal esponse was received from Standard Bank, A copy of tha eters annexed hereto and marked “SB17" On the same day that Oakbay’s atomeys were threatening Standard Bank with an ugent appication a8 aforesaid, Oskbay’s hen Chief Executive Officer, Mr. Nazeem Howa, advised the Applicant, per annexure ‘Eto the founding affidavit that Oakbay had obtained legal advice that informed it that eny legal proceedings - & jWA9, 95 to reverse the banks’ decisone would be ‘sti-bor | do net repeat the contentions set out in annexure “SB17" hesto, They are clearly unfounded and willbe dealt wth, i necessary atthe hearing of ths application. Standard Bani handed the leer of Oakbay’sattomey tts atiomey fra response, That response is st out in the letter of Werksmans attomeys annexed hereto and marked “SB16" wherein they confirmed that Standard Bank acted lawfully, and in good fh, when it gave the notice ofits intention to terminate is relationships wih Oakbay and ts associated ‘enti, and that it would not accede to Oakbay’s demand ‘Thereafter, Mr Howa of Oakbay asked Standard Bank, during a corfrence callin which partcpated, f he and Oakbay's other representatives could agin mest wih senior representatives of Standard Bank in pursuit of Oakbay’selfots to persuade Standard Bank o not implement the decision to terminate the relationships. Mr Howa was Informed that such @ meeting would be inappropriate in crcumstances where the above-mentioned Uugent application was being threatened. Oskbay's response was to direct a letter to Standard Bank in which it recorded thatthe leler of ts attorneys which threatened an Urgent application on its behalf was sent in ertor and invited Standard Bank to resume ‘commercial negotations witha view to contnue a banking relationship wth iA copy of (akbays letter is annexed hereto and marked "SB18", During @ telophone call en 1 June 2016, Mr Howa was informed tht his representations had not pereuaded Standard Bank to revoke ts decision to temminata the banking ‘relationships. He asked that Standard Bank furnish Oakbay with its reasons. | accordingly set out some ofthe reasons in alter that was addrested o Mr Howe, a copy of whichis Gu ‘annexed hereto marked "S5209541 952. “The letter records amongst other things: In aditon “Without waiving our ight nolo furnish reasons for our decisions and without inviting any debate about the correctness of our decisions, 1 point out thatthe law, inclusive of South Afice's Companies Act (regulation 43), Prevention of Organised Crime Act, Prevention and Combating of ConuptAetities Act and Financ intliganes Centre ‘Act 9s woll as the USA's Foreign Corp! Practees Act and the UK's Baibory Act provents us rom having dealings with any person or centy where a reasonably digent and viglan person would suspect that such dealings coud, rectly or indirectly, mako us a party to, ‘accessory to, contravention of such law We have conducted enhanced cue digence on the Oakbay entes {as required by the Financial Ineligence Centro Act and have Concluded that continuing with any Bankorcustamer relavonshio with them would increase our risk of exposure to contravention of the aforementioned few to an unecceptable level” tothe above reason, Standard Bank stated: “Moreover, an inciapenseble requirement of @ relationship between a banker and @ customer is that of mutual trust The campaign on behalf of the Oakbay enties (lo coerce Standard Bank info ‘maintaining al bankercustomerraatonshis) bas falsely and pubicy accused Standard Bank of ilegalcolusion wh our compiters and Si,or. ‘reating the perception that tis intentonaly excluding black South ‘Aleans from the economy. Such accusations are wholly disruptive ‘ofthat rust and prevent any bankercustomer relationship from being maintained” ‘As more fully explained above, one ofthe best practices and standards for a bank to rmilgate its risk Is to review its relaonshins with customers wher adverse information about them comes toils attention. When adverse information about the shareholders of ‘Gakbay and entities within the Oakbay group came to Standard Bank's attention in or about the fist quarter of 2018 Standard Bank conducted a ful review, in ight of that adverse information, of the enites that were directly or increciy owned by andlor associated with members ofthe Gupta family and had a relaionshi with Standard Bank Following such review, Standara Bank sent he letter of 6 Api 2013 wherein it incicated that t would, with effet from 6 June 2016, terminate the banker-cistomer relationships that it had with Oakbay and is associated entities. Standard Bank sent a notice of termination of the banker-customer elaonship between it andthe 10” respondent on 28 uly 2016. The relationship terminated on 28 October 2018 ‘Some of the adverse infomation that influenced Standard Bank's decision included, inter ‘aia, the flowing Media reports showing that a transaction involving the acquisition of Optimum coal Mine OCH") from Glencore Ple (Glencoe) by Te3eta Exploration and Resources (Pb) Lid (Tegsta) for R215 billon was aleged to have been polticaly influenced. Paricularly, was alleged that the Minster of Mineral Resources, Minister Zwane, accompanied members of the Gupta family to a . (& Jn972, ora, meeting in Zurich, Switzeriand with Mr Ivan Glasenberg, the Chief Executive Offcer of Glencoe, to fcitate the negotiation ofthe transection between Tegeta land Glencore. A copy of such @ mecia report sting ths aut is annexed hereto marked "S821". The Public Protectors report, which | dea! with futher below, ‘confime that members of the Gusta family and the gon ol the President of the Republic hold interests in Togeta Ina copy of an article that appeared in the Financial Mal sttached hereto as ‘S822’, it was reported that Mr Howa of Oakbay had emphatically denied that Minister Zwane had attended the Zurich negotiations yet the Minister's spokesperson readily admitted that he had. Also the Department of Mineral Resources had issued a media statement, dated 1 February 2016, that confimed that Minister Zane had met with Glencore in Switzeriand. A copy ofthe mesia statement is annexed hereto matked °SB23°. Mr Howals reported denial was @ ‘ed fag ofthe type thatthe Crown Court ruled should net be ignored, Masia reports had mentioned that Tegota was awarded a contract of A bllon to supply coal to the Amajuba power station in Mpumalanga by Eskom and thatthe Democratic lance contended tha this contact should nel have been awarded because ofthe poor qualty of the coal, which had been rejected in the past by Eskom. n alton. it was reported that Eskom had suspenced some of ts senor employees for questioning the qualiyof the coal being supped by Tegeta to the “Amajuba power sation. A copy of @ mecia report stating the aforementioned is ‘annexed hereto marked "S824, - OYG&or, 975, ore. Media had reported that members ofthe Gupta family, Mr Rajesh Gupta, Mr Atul ‘Gupla and Mr Ajay Gupta, were accused of “slate capture" through their connertion wth the President ofthe Republe. These allegzions were made as a consequence of pubic statements made by the cuent Deputy Minister of Finance, Mc Moebisi Jonas to the effect that members ofthe Gupta family had offers to procure his promotion to the Finance Minister's postion in 2016, prior to the ismissl of Mr Nhlanhla Nene, who was the previous Minster of Finance Mr Jonas claimed that he had rejected the alleged offer. A copy ofthe relevant ‘mecia statement issued by Deputy Minster Jonas is annexed hereto and marked "8325". Whereas comupton related charges by the SFO and SEC had been based upon eicumstantial evidence, his direct evidence, pubished in wing, of «2 pima facie contravention of PRECCA was considered by Standard Bank to be ‘more than jus ared fag. [As appears from annexure “SB26° hereto, it had been reported that a former Member of Parliament, Me. Vytie Manta, had alaged that members of the Gupta {amiy had offered her the postion of Minister of Public Enterprises provided certain commercial decisions would be taken to favour antties linked to the businesses of the Gupta family. This prima facie contraverion of PRECCA was yet anotne ed ag, |As appears from annexure “SB27" hereto, the Democratic Aliance announced ‘that it had laid criminal charges against members of the Gusta family in terms of ‘section 4 of PRECCA following the disclosures of Mr Jonas and Ms Mentor mentioned above, The Demacrate Allanee being the complainant was act = factor; what was relevant was the fact of the formal laying of charges under977. 978, ore, PRECCA against persons in contro of various ents with which Standard Bank had relationships. ‘hs appoars from anoxure “SB28" hereto, the madi ropered that Mr Thombs Masoko (he previous Head of Goverment Communication and Information Systems) had claimed that President Zuma had requested him to assist the ‘Gupta family and that in 2 subsequent meeting with the family, Mr Maseko ‘elused the demand made to acquire advertising space in newspaper which is ultimately owned bythe Gupta family. Yet another red flag 'As appears rom annexure “SB29" hereto, had been reported that other local banks had terminated ther banking relationship with the Gupta family and its associated entities. Furthermore, the Oakbay group's auditor, KPMG. had terminated its reiatonship with Oakoay cing ‘association risk” as the reason Raising more red fags. [As appears from annexure “$830” hereto, an inerMiniseal Commitee had concluded and reported thal the Gupta family had uted 2 itary ar force base for personel puposes by misrepresentation and pltical infuence, One inference to be craw from ths is that a “gatification’ 9s defied in PRECCA could have been offered to secure the landing rights Reports such as the ones annexed as annexure “SB31" and “SB32" of the feistonce of documentary evidence of an Oakbay subsidiary, Westdawn Investments, having secured a loan from the Bank of Baroda forthe benefit of the Presidents family in the face of a denial by Oakbay’s subsidiary that any Gupta Of &98, 100. Felated assistance had been given. Such denial justified adverse inferences about the cieumstances of the loan. ‘Some ofthe cisims that are mentioned in the aforementioned media reports have since been investigated by South Alic's Puble Protector. The Puble Protector produced a repod, released to the pubic on 2 November 2016, tited “State of Capture’. Again, the Contents of the report is not repeated, save to point out that it confi some of the mentioned claims in the media concerning Oakbay and the other entities inked to the Gupta family. Due to its length, a copy of the report is not annexed but it wil be made avaiable to the above Honourable Court atthe heating ofthis matte, Separately, @ factor that inluenced Standard Banks resolve to abde by its termination

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