Sipho Pityana clears hurdle in Absa case after removal as director

The Pretoria High Court last week effectively ruled that Absa must hand over its record of decision resulting in the removal of former lead independent director Sipho Pityana from the board in November 2021.

Pityana was accused of sexual harassment against an employee while he was serving a chairman of AngloGold Ashanti – a charge he has steadfastly denied.

As a consequences of these allegations, Pityana has argued in court that he was unlawfully removed as a director of Absa, his name has been tarnished, and he was turned down for the position of Absa chair to replace the outgoing Wendy Lucas-Bull.

Two investigations into the matter were conducted, the first by AngloGold Ashanti, which was unfavourable to Pityana. Another investigation by senior attorney Peter Harris, commissioned by Absa, found that the first report was flawed to the extent that it did not obtain corroborating evidence from independent sources.

Read: Pityana goes to court to challenge his removal from the Absa board

In a separate case, the South African Reserve Bank’s Prudential Authority has been roped into the proceedings amid claims that it had objected to his nomination as Absa chair before the selection process had been allowed to run its course – effectively poisoning his chances of being nominated as Absa chair.

Harm to reputation

The bank brought an interlocutory application, arguing that Pityana had used the wrong court rule (Rule 53, which deals with review applications) in seeking access to the bank’s record of decision. It was this case that was decided in Pityana’s favour last week.

Pityana told Moneyweb that Absa must now hand over the missing record of decision dealing with his removal from the board. This will allow him to more forcefully plead his case that the bank unlawfully removed him as a director.

“I am of course delighted with the ruling in my favour last week, as this will go a long way to proving my case that I was [allegedly] unlawfully removed as a director of Absa which was obviously a punitive action against my court action against the SA Reserve Bank,” Pityana told Moneyweb.

“This has been massively prejudicial to me, my reputation and my career.”

Pityana is awaiting judgment in another case where he is asking the court to hand over all board minutes in which his nomination was discussed.

Read: Pityana demands minutes of Absa board meetings

Costly legal action

In a statement issued after the judgment, Pityana says despite two public officers of the bank – one of them being Lucas-Bull – agreeing to release the missing records, Absa decided to embark on the costly route of denying him access through the courts.

“This behaviour begs the question: what is it that Absa has to hide that warrants it going to such lengths to avoid public scrutiny through our courts if it believes its decision was founded in law and in the best interests of the company?” says the statement.

“Absa is a public listed company whose shareholders include an array of investors, from ordinary workers whose pension contributions are invested on their behalf by asset managers to ordinary unemployed poor citizens whose funeral policy insurance is invested or banked with the company, to high net worth individuals and institutional investors.

“We are looking forward to proceeding with the review application to allow the full ventilation of the matter and the scrutiny of the conduct of Ms Lucas-Bull and her board in this regard,” says Pityana.

Absa’s response

Asked to respond to the judgment and Pityana’s statement, Absa Group says it is considering the 10 May judgment of the Pretoria High Court relating to the applicability of Rule 53.

“Absa will take a position on an appropriate way forward in due course,” it says.

“The outcome of this interlocutory application does not, however, materially affect Absa’s position in the review application. Absa is unable to provide further commentary as the matter remains subject to legal proceedings and we look forward to these being concluded in the courts.”

Costs were awarded against Absa.

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