Pityana's Absa 'fishing expedition' dismissed with costs.
By Garth Theunissen.
Former Absa non-executive director Sipho Pityana, who was removed from the bank’s board in November 2021, has lost a court case in which he sought to compel the banking group to hand over documents related to that decision.
At the heart of Pityana's legal wrangles with Absa are issues around his December 2020 resignation as AngloGold Ashanti chairperson.
In 2021, Absa reportedly informed the Reserve Bank's Prudential Authority (PA) that the bank intended to nominate him as chair, Pityana said.
But he claims that former Absa CEO Maria Ramos, who replaced Pityana as AngloGold's chair, then told the authority about sexual harassment allegations he faced at AngloGold. He denies the allegations. Absa did not appoint Pityana, and later dismissed him from the board after relations soured.
Pityana wants the bank to take him back or compensate him.
The Gauteng High Court ruled on Friday that the documents Pityana sought are not relevant to his dispute with Absa and that any minutes, notes and recordings that may exist on the matter are privileged. The court also ruled that the documents sought by Pityana were described "in too wide terms" and that there is no reason why they would be needed for his litigation against Absa.
The court ruled that the case must be dismissed with costs.
Acting Judge M Snyman found: It is clear that Pityana does not claim only minutes of the meetings, but also notes, recordings of discussions regarding succession of the chairman of Absa Bank. This, in my view, is indicative of a fishing expedition. Pityana was, for good reason, excluded from these meetings. Prima facie, it is therefore confidential.
Pityana’s failure to compel Absa to hand over its record of decision on his removal comes after he won an opening victory against the bank in May. In the May case, Absa had tried to block him from approaching the courts to compel it to hand over its record of decision on the grounds that it was an irregular step.
However, Absa lost that case with costs, paving the way for Pityana to apply formally to the court for a declaratory order that would force the bank to hand over the relevant documents. Pityana has argued the documents are pertinent to his main case against Absa, in which he is seeking to set aside the bank's decision to remove him from its board.
Friday's ruling said that at least one of the documents sought by Pityana had already been given to him, as they were part of a board pack he would have received. It added that Pityana had not stated why this document would assist him or why it was relevant.
"I can therefore not find that the report is either relevant or not in possession of Pityana," the judge found.
Pityana also sought access to a further nine documents related to Absa’s record of decision. However, the judge said no evidence was supplied to prove that any minutes, notes or recordings of meetings had been made.
"Even if minutes are to be taken and were taken, what is referred to as emanating from a meeting will not necessarily result in the minutes containing any information to the issue raised," the judge said.
Pityana has also launched a case against the PA, which he accuses of meddling in Absa’s decision to consider him as the bank's chair.
Pityana claims the PA influenced the board to not consider him for the chair role and, in doing so, went beyond its mandate as envisaged in legislation.
Acting Judge Snyman said in Friday’s ruling that it was common cause that the names of prospective nominations for the Absa chair role had been provided to the PA, and that the regulator had indicated it would not support Pityana’s nomination.
"It is common cause that the process as prescribed in the legislation had not been followed," Snyman said.