Johannesburg – When two of South Africa's four big banks
challenge each other in court one of these days, the fur is sure to fly.
There is a strong possibility that the reputation of one of
the two, Absa Group [JSE:ASA] or Nedbank Group [JSE:NED], will suffer serious damage if the case is finally
fought in court.
The possibility of such a battle came to light last week
when it was disclosed that Absa was suing Nedbank for R773m for losses
Absa had suffered in a series of transactions in the single stock futures (SSF)
market initiated by Nedbank’s subsidiary Syfrets.
These transactions were linked to shares in the
controversial property group Pinnacle Point Group [JSE:PNG] (formerly known as Acc-Ross), the
developer of various golf estates across the country, which was recently
liquidated.
An SSF contract is a contract between two
parties to buy shares in a company at a future date at an agreed price.
Syfrets sold the contracts and Absa was involved as the
clearing agent for Cortex Derivative Brokers, which acted on behalf of the
parties buying the contracts from Syfrets.
The contract buyers and Cortex were unable to meet their
obligations in terms of the agreement. This, according to the JSE’s rules,
meant that Absa as clearing agent had to meet the conditions of the agreement.
In terms of the conditions of the futures contract, Absa was
therefore obliged to buy a large number of high-priced shares in Pinnacle Point
from Syfrets whereas the shares were worth very little. This cost the bank
hundreds of millions.
Absa eventually acquired 27.3% of Pinnacle Point, whose
future at that stage already looked very fragile.
Absa estimates its losses suffered in this way at R773m. It
is now blaming Nedbank, Syfrets’ holding company, for the huge loss.
The question being asked by everyone in banking circles is
whether Absa could have foreseen the loss.
The court papers submitted by Absa to the South Gauteng High
Court in Johannesburg make serious allegations against Nedbank. The most
important of these is that Nedbank (via Syfrets) was not transparent enough.
As part of the transaction Nedbank bought physical shares in
Pinnacle Point in order to deliver them when the futures contracts expired, but
Absa claims that the information was not disclosed in terms of the JSE’s rules.
As a consequence Absa was unaware of the extent of exposure
to the contracts via Cortex.
At the same time the alleged lack of disclosure also led to
Nedbank, according to Absa, acting in contravention of the codes of the
Securities Regulation Panel, the Competition Act and even the Companies Act
(see reports on Absa’s charges).
Nedbank is also accused of secretly manipulating Pinnacle
Point’s share price upwards, while the market for them was limited.
Absa further alleges that Nedbank should have anticipated
that buyers of the contracts and Cortex might be unable to meet their
obligations and that it should therefore have applied stricter credit control.
Indeed, the court documents suggest Nedbank did not act
with sufficient caution since it knew that it could get its money from Absa if
matters went awry.
These are serious allegations which could severely impair
Nedbank’s reputation, but the banking group responded to enquiry last week by
saying its actions had had no relation to the sharp decline in the Pinnacle
Point share price which had led to the losses.
The bank also made it quite clear that it would contest the
claim with everything in its power. This indicates that the fight could become
protracted, expensive and messy.
Analysts reckon the tone of Nedbank's statement
indicates that it is challenging Absa to proceed with the case.
Should things become rough, there is always the possibility
that the party whose reputation will suffer the most will try for an
out-of-court settlement.
Charges against Nedbank
In the document summonsing Nedbank, Absa makes the following
claims as to why Nedbank is responsible for the claimant’s losses:
- Nedbank should have disclosed its acquisition of shares in
Pinnacle Point in terms of the JSE's rules. This would have enabled Absa to
assess its risk.
- The rate at which Nedbank bought the Pinnacle Point
shares and issued futures contracts to resell them, created a false market and
inflated prices. At one point 89.3% of Pinnacle Point’s shares was linked to
futures contracts. Nedbank should have informed the market about this.
- In the transactions Nedbank contravened the rules of the
Securities Regulation Panel by failing to make an offer to minority
shareholders, as required by the code, when its stake in Pinnacle Point
exceeded the 35% level.
- Nedbank also should have informed the
Competition Commission when its stake exceeded the 50% level, but did not do so.
- Nedbank also contravened the Companies Act by not
announcing the acquisition of a new subsidiary when, by taking up the Pinnacle
Point shares, it had obtained the majority of voting rights in the company.
- Absa says Nedbank had also had a legal obligation towards
it to ensure that Cortex and its clients would be able to meet their
obligations in the light of the many futures contracts issued.
It is even alleged that Nedbank issued contracts – and
extended their maturity – to clients to whom it would not otherwise have
advanced money.
This is how Absa suffered loss:
SSF contracts are contracts to buy a
particular share, in this case Acc-Ross (which subsequently became Pinnacle
Point), at a later date at a particular price.
Over a period Nedbank’s subsidiary Syfrets bought shares in
Acc-Ross and issued futures contracts in order to sell them at a later date at
an agreed price.
The transactions were part of a service offered by Nedbank
to Acc-Ross’ directors to sell their shares for cash, and buy the shares back
later.
Cortex Derivative Brokers was the broker that bought the
contracts on behalf of the clients. Absa was Cortex’s clearing agent.
The rules of the JSE, supported by legislation, require that
if any of the parties, in this case Cortex and its clients, do not meet their
obligations with regard to the futures contracts, the clearing agent (Absa) has
to take up the shares at the agreed price.
The JSE also requires that if during the term of a futures
contract it becomes clear that one party will suffer a loss and the other make
a profit, the loss-making party has to pay the potential shortfall to the other
party.
This is termed a margin and is specifically done to prevent
one of the parties not meeting its obligations when a futures contract term
expires.
Cortex and its clients could however not pay the margin,
meaning that Absa was obliged to buy the Acc-Ross shares linked to the
contracts at the agreed price.
In this way Absa acquired a 27% interest in Acc-Ross, which
was then operating as Pinnacle Point.
But the shares were worth much less than Absa had to pay for
them, and the bank had suffered a loss of hundreds of millions.
Pinnacle Point’s property empire has since collapsed and the
company has been liquidated.
Absa was also unable to recover the R773m loss from Cortex
Derivative Brokers or its clients because Cortex was also liquidated in the
wake of the saga.
Nedbank wins round one
Nedbank has already won the first round in the impending
legal action with Absa – even though Absa was not the complainant in this case.
Minority shareholders in Pinnacle Point lodged a complaint
against Nedbank with the Securities Regulation Panel because Nedbank had not,
as required in the code, made an offer to minority shareholders when it owned
35% of the property group.
But the panel ruled in Nedbank’s favour. According to the
panel, the rule did not apply because Nedbank had not wanted to gain control of
Pinnacle Point, but had only acquired the shares to facilitate futures
contracts.
This decision, which elicited some criticism, will certainly
be raised in the forthcoming court case.
- Sake24
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