The Supreme Court of Appeal (SCA) has confirmed that confidential information submitted to the Financial Intelligence Centre (FIC) cannot be obtained by litigants merely because it may be relevant to civil proceedings.
In a unanimous judgment delivered on 23 September 2026, the SCA set aside a disclosure order granted by the Western Cape High Court sitting as the Equality Court. Judge Piet Koen wrote the judgment, in which the other four judges concurred.
The SCA held that information obtained and held by the FIC under the Financial Intelligence Centre Act (FICA) cannot be treated as ordinary litigation material. Section 40(1)(e) of FICA does not create a general right to information held by the FIC. A person relying on the provision must first establish an existing legal entitlement to receive the information.
For accountable institutions, the judgment confirms that institutions whose confidential submissions are affected by a disclosure order may have a direct and substantial legal interest in keeping that information confidential, even though it is held by the FIC.
Wide-ranging request for information
The appeal arose from an interlocutory application in wider Equality Court litigation brought by Dr Iqbal Survé and companies in the Sekunjalo group against several banks over decisions affecting their banking relationships.
Survé and the Sekunjalo companies were not parties to the disclosure application or the SCA appeal. The disclosure application was brought by a separate group of litigants who had intervened as co-applicants in the wider proceedings.
The Sekunjalo group alleged that the banks’ decisions were arbitrary, unlawful, and amounted to unfair discrimination under the Promotion of Equality and Prevention of Unfair Discrimination Act. The banks disputed the allegations, maintaining that their decisions were based on lawful commercial, regulatory, and risk-management considerations.
The intervening co-applicants claimed that their dealings with Investec, First National Bank, and Absa had also been affected in an unlawfully discriminatory manner. They sought information from the FIC, contending that it would assist them in establishing whether the banks’ decisions constituted unlawful discrimination.
The information sought included the Risk Management and Compliance Programmes (RMCPs) submitted to the FIC by Absa, FNB, Investec, Nedbank, and Standard Bank.
The request also covered suspicious and unusual transaction reports submitted by accountable institutions during the previous five years concerning the six co-applicants, Sekunjalo Investment Holdings and related entities, and a separate group of companies that included EOH-related entities, KPMG Services, Steinhoff International Holdings, and Tongaat Hulett Development.
In addition, the co-applicants wanted the FIC to disclose whether it had issued directions under section 34(1) of FICA instructing accountable institutions not to proceed with transactions involving specified people or entities.
In February 2024, the Equality Court ordered the FIC to provide the requested documents within 20 days and directed it to pay the costs of the application.
The FIC applied for leave to appeal. Nedbank and Absa intervened because the order affected confidential information they had submitted, without their having been heard.
The co-applicants subsequently withdrew their opposition to the applications for leave to appeal and formally abandoned the Equality Court’s order. Despite the abandonment, the FIC and the banks proceeded with the appeal.
The SCA decided it was in the interests of justice to determine the matter because the Equality Court’s reported judgment continued to exist and could influence future demands for information held by the FIC.
Relevance does not create a right to information
A central issue was the meaning of section 40(1)(e) of FICA. The provision requires the FIC to make information available to a person who is entitled to receive it in terms of a court order.
The Equality Court effectively reasoned that the co-applicants would become entitled to the information once a court ordered its disclosure. The SCA held that this begged the prior question: what existing legal right entitled them to the information?
The right to receive the information must exist independently of, and before, the court order. Section 40(1)(e) enables an order to give effect to an established right to disclosure, but it does not create that right.
A court could, for example, order disclosure where a litigant has established a right to obtain the information in the context of discovery. In that situation, the court order would give effect to the existing right.
The SCA did not attempt to identify every circumstance in which such an entitlement might arise. It said the law should be allowed to develop on a case-by-case basis.
The Equality Court had moved from finding that the information might be relevant to the discrimination claims to ordering its disclosure, without first determining whether the co-applicants had established the required legal entitlement.
The SCA held that relevance may be important when a court decides whether information should be disclosed, but relevance does not itself create a right to receive it. Treating relevance as sufficient would effectively transform the FIC into an alternative source of potential litigation documents.
Why FICA protects the information
The SCA said confidentiality is central to the design and effectiveness of FICA’s reporting system.
RMCPs demonstrate an institution’s compliance framework under FICA, while suspicious and unusual transaction reports may contain confidential intelligence concerning potentially unlawful financial activity.
These reports can include private information about the person or institution making the report and the person or institution whose conduct is being reported. They may also contain untested suspicions about people who are not parties to the litigation and against whom no wrongdoing has been established.
Unrestricted disclosure could prejudice investigations, expose private information, damage reputations, and alert people suspected of unlawful conduct. Confidentiality also supports the candid reporting on which the effectiveness of the financial intelligence system depends.
Sections 40 and 41 therefore do not create a general right of access to confidential information. Disclosure is permitted only under an applicable statutory exception or where another established legal entitlement to the information exists.
Affected institutions were not heard
The failure to establish an entitlement under section 40(1)(e) was decisive of the appeal. The SCA nevertheless considered two further grounds on which the order should also have been set aside.
The first was that the banks and other affected parties had not been joined to the application.
The order covered information submitted by the banks and potentially information concerning a range of other institutions and entities. It also concerned information relating to individuals and companies that were not parties to the proceedings.
The fact that the FIC had custody of the documents did not extinguish the continuing confidentiality and commercial interests of the institutions that had submitted them. The SCA said the argument that joinder was unnecessary because the order was directed only at the FIC confused custody of information with a legal interest in it.
A court should not make an order that may directly and prejudicially affect a party’s rights without giving that party an opportunity to be heard. The SCA held that the affected parties should have been joined and given an opportunity to be heard.
Their absence also deprived the Equality Court of evidence about the sensitivity of the documents, the prejudice that disclosure could cause, and whether narrower relief could have been formulated.
Request also failed on standing
The second additional ground concerned the co-applicants’ standing to obtain some of the requested information.
They sought documents concerning Sekunjalo, Nedbank, and other entities without establishing a legal interest in their disclosure or explaining how the information was connected to their own discrimination claims.
The co-applicants did not have a banking relationship with Nedbank. The SCA said Nedbank could therefore not have taken decisions affecting them, and its confidential records could not establish discriminatory treatment of them.
The Court found that the information had been sought in broad and general terms in the hope that something useful might emerge.
It said that disclosure, like discovery, is not an investigative tool for searching for a cause of action or unspecified evidence. The Court therefore regarded the request as an impermissible fishing expedition, providing a further ground for dismissing the application.
The SCA emphasised that the principle established by the appeal is limited: information held by the FIC is not immune from judicial scrutiny. In appropriate circumstances, and where authorised by law, a court may direct disclosure after weighing the competing interests of confidentiality, fairness, access to justice, and the proper administration of justice.
Any departure from the confidentiality regime must be clearly authorised by law, with affected parties given an opportunity to be heard and carefully tailored judicial safeguards in place.
The SCA upheld the appeal, set aside the Equality Court’s order, and substituted it with an order dismissing the application with costs, including those of two counsel where so employed, on scale C. The respondents were also ordered jointly and severally to pay the FIC’s appeal costs, including those of two counsel where so employed.
