A THREAT by a Pretoria businessman to have two Supreme Court of Appeal (SCA) judges removed in a case involving Absa Bank, on the basis of their alleged association with the financial institution, was dismissed as "mischievous" on Monday.

Businessman Arif Mahomed’s attorney, Zehir Omar, had claimed a conflict of interest, alleging that appeal court judge Francois Malan was a director at the Institute of Banking and Finance Law at the then Rand Afrikaans University between 1987 and 1997.

He also claimed that Judge Malan’s colleague, Judge Nigel Willis, was a fellow of the Institute of Bankers of South Africa in 1995.

The attorney had claimed the institute was funded by Absa.

In November Mr Omar sought to place on record that the judges had failed to disclose their alleged ties to Absa.

But SCA judge Madisa Maya found that Judge Willis had never had any "interest and/or association" with Absa and that the institute existed to raise the professional standards of the banking industry. Judge Maya said the allegations against Judge Malan were raised in 2010 in a matter before the Constitutional Court. The Constitutional Court found the allegations "wholly untrue or substantively incorrect".

In 2010 the Constitutional Court dismissed an appeal by Enrico Bernert, who had contended that the SCA was biased on a number of grounds, including that two of the judges had a prior relationship with Absa Bank, and that another judge hearing the case held shares in Absa.

"It seems rather mischievous of Mahomed and his attorneys … with the full awareness of the Bernert decision, to raise this issue as they did and to persist with their allegations of bias even after their correspondence with the acting president of this court which pointed out that the Bernert judgment to which they referred did not support Mahomed’s ‘apprehension of bias’," Judge Maya said.

On Monday the SCA upheld an appeal by Absa and set aside a judgment of the South Gauteng High Court.

The high court had found that Absa was liable for the conduct of its representative who had perpetrated fraud at two Absa agencies in Pretoria.

Mr Mahomed and his nephew Shiraz Abdul claimed they concluded agreements with Absa’s agent, Naresh Mistry, at Absa’s Marabastad agency.

The men alleged they were swindled by Mr Mistry and sought R7m in compensation from Absa. Judge Maya said the men did not have official Absa acknowledgement of their deposits. She ruled that the men intentionally colluded with Mr Mistry to open investment accounts with Absa under fictitious names to evade tax. This was unlawful conduct that Absa had not authorised Mr Mistry to undertake on its behalf, she found.