Access to information to establish discriminatory bank practices in unilateral termination of bank account cases: Ndudane and Others v Financial Intelligence Centre 2024 (5) SA 549 (WCC)

There are different legal ways in which a litigant can access information held other persons, state organs and regulatory bodies, one of which, for example, is by means of the Financial Intelligence Centre (FIC). Another is accessing such information in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA), which was promulgated in terms of section 32(2) of the Constitution of the Republic of South Africa of 1996. Alternatively, the litigant may invoke rule 35 of the Uniform Rules of Court to discover documents during legal proceedings. In certain instances, legislation may provide measures on how to access certain information that relates to the regulatory scope. An example of such legislation is the Financial Intelligence Centre Act 32 of 2001 (FICA), which regulates access to information reported to the FIC as a regulatory body to prevent financial crime. Litigants, however, often experience challenges in putting their case within the provisions of FICA or in determining other legal avenues to access the relevant information. The decision of the Western Cape Division of the High Court in Ndudane and Others v Financial Intelligence dealt with access to information in terms of sections 40(1)(e) and 41(d) and (e) of FICA. This case note examines how the court interpreted and applied these sections, other relevant pieces of legislation, and the Constitution as avenues for accessing information. More importantly, it critically analyses the impact of this decision on continuing cases of termination of bank accounts and how bank customers may use the relevant legislative provisions to access information to establish reasons for the termination, including discrimination by banks as a ground for termination. The discussion identifies one potential development raised in this case in relation to cases of termination of bank accounts. The development relates to how fairness was cited as a ground to access information relating to the termination of bank accounts. Therefore, the discussion also determines the correctness of applying fairness as an ground or defence for the termination of bank accounts.