Pityana demands minutes of Absa board meetings

Specifically those at which his possible appointment as chair was discussed. Bank says he’s not entitled to them.
Sipho Pityana contends that unlawful interference by the Reserve Bank’s Prudential Authority wrecked his chances of assuming the Absa chair. Image: Supplied

Sipho Pityana, former lead independent director at Absa and one-time chair at AngloGold Ashanti, last month filed an application to compel Absa to furnish documents he believes will support his claim that he had been unlawfully bulleted as the preferred candidate to chair the bank.

This was after the Reserve Bank’s Prudential Authority (PA) advised the Absa board that it would object to his nomination for the role without having followed due process of the law, according to Pityana.

Pityana had been the preferred candidate to take over from retiring Absa chair Wendy Lucas-Bull, but then allegations of sexual harassment while he was chair at AngloGold Ashanti (AGA) made their way to the PA. The PA is required to vet senior bank appointments such as this. Pityana has denied the allegations.

The latest court application means a second front has been opened up in the court case, as Pityana and Absa battle it out over which documents he should be entitled to receive – a process known as discovery.

Absa has handed over minutes from three board meetings, but Pityana wants access to minutes from a further nine meetings, arguing that these will support his argument that he was unlawfully sidelined in the process of selecting a new chair for the bank.

‘Not entitled’ to the documents

In its court filings, Absa says Pityana is not entitled to the requested documents as they were not referred to in its court filings, and are in any event irrelevant and/or confidential. Pityana says this case is essential to determining whether the regulator has strayed wide of the law by conducting a parallel process in defeating his candidacy as Absa chair, even before the bank had formally submitted his name as their recommended candidate to the PA as required under the Banks Act.

Absa in its court filings downplayed the importance of these meetings and argued that it does not rely on them in its main application (defending against Pityana’s claim against the PA and Absa).

“It is possible that the documents are damaging to its case and/or the [PA’s] case and it has elected not to rely on them for that reason,” argues Pityana in an affidavit.

Pityana is suing both Absa and the PA as the bank’s regulator on the grounds that the latter exceeded its powers in connection with his nomination as Absa chair. Both Absa and the PA are defending the case, though Pityana is seeking no relief from the bank.

He says he was Absa’s preferred choice as chair until the PA weighed in, saying the majority of its governors would oppose his nomination.

Pityana claims in his court application that this interference by the PA was unlawful and wrecked his chances of becoming Absa chair.

Pityana’s candidacy ‘dealt with properly’

In an affidavit before the Gauteng High Court, Lucas-Bull says Absa does not intend to rely on any of the minutes Pityana is seeking as they are not relevant to the case, adding that the bank took the issue of Pityana’s candidacy seriously and dealt with the matter properly.

Pityana has an entirely different view of the matter, arguing that it would be catastrophic for Absa and the PA to allegedly operate outside the law and not be held to account.

The second case is largely technical, comprising legal argument as to who has a right to what information. Pityana’s review application asks the court to compel Absa to produce its record of decision, including minutes and notes of board meetings where the board decision to remove him as a director was discussed.



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It will be interesting to see whether Mr Pityana will ultimately be permitted access to the board minutes. There are minutes and there are minutes. Styles differ from the extremely brief to the excessively wordy. Nevertheless minutes which accurately capture the essence of the discussion can be explosive especially when they are discovered in litigation. Hence there is often a tendency to “doctor” the minutes to reflect the views of the dominant force in the meeting, usually the CEO. The welcome development, however, is the recording of board meetings. Access to the recording if permitted would certainly aid in determining the truth of what was actually discussed in the board meeting.

End of comments.




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