By Lehlohonolo Lehana.
The Competition Commission has approached the Constitutional Court in a bid to appeal the Competition Appeal Court judgment in which it upheld the appeal by the majority of the banks accused of price-fixing and division of markets.
The case ignited a firestorm of political posturing late last year, with accusations from several parties that the banks were responsible, through manipulating the currency, for the dire economic conditions in the country.
The commission had named 23 banks through three additional supplements to its original referral to the Tribunal.
Most banks had complained about the vagueness of the case brought by the commission and asked authorities to dismiss the allegations.
The commission initiated a complaint in April 2015 centred on allegations of price-fixing and market division in the trading of the dollar and rand currency pair, alleging that the anticompetitive practices took place between September 2007 to at least September 2013.
In August 2016, the commission amended the complaint, adding additional financial institutions and including allegations of market allocation through customer allocation against the financial institutions.
The commission subsequently referred the complaint to the Competition Tribunal in February 2017. The respondent banks took exception to the original referral. The tribunal adjudicated their objections in 2019 and considered them again on appeal before the Competition Appeal Court in 2020, which ordered that the commission file a new referral affidavit to substitute and replace all the complaint referral affidavits.
In June 2020, the commission referred a case against 28 local and foreign banks to the tribunal, alleging they colluded with one another to fix the foreign exchange rate regarding the US dollar and the South African rand currency pair.
The Appeal Court handed down their judgment in January 2024 and ordered four of the 21 respondent banks to file, within 40 days, their answering affidavits with the Tribunal.
The Appeal Court also upheld the appeal by 17 respondent banks which sought a Competition Appeal Court order to set aside the March 2023 Tribunal decision.
The four banks ordered by the Appeal Court to file their answering affidavits are BNP Paribas, JP Morgan Chase and Co, HSBC Bank, and Credit Suisse Securities.
Based on these facts, the Appeal Court order has therefore released 17 respondent banks from the complaint referral before they answered the allegations against them and restricted the Commission’s case to only four banks, according to the Competition Commission statement.
The Competition Commission is, therefore, asking for leave to appeal.
The Competition Commission is appealing the Appeal Court’s order to the Constitutional Court against 13 banks.
These banks are Bank of America, Merrill Lynch International Designated Activity Company, JP Morgan Chase Bank N.A., Australia and New Zealand Banking Group Limited, Standard Bank of South Africa Limited, Nomura International PLC, Commerzbank AG, Macquarie Bank Limited, HSBC Bank, USA National Association, Merrill Lynch Pierce Fenner & Smith Inc, Bank of America, National Association, Nedbank Limited, FirstRand Bank Limited, and Standard Americas.
The Competition Commission said that they will not appeal the Appeal Court’s order in respect of the Nedbank Group Limited, FirstRand Limited, Credit Suisse Group, and Standard New York Securities.
The Competition Commission will also not appeal the Appeal Court’s order that dismissed the appeals of these four bank, namely, BNP Paribas, JP Morgan Chase and Co, HSBC Bank, and Credit Suisse Securities.
“Absa Bank Limited, Barclays Capital and Barclays Bank have applied for leniency. Citibank N.A. and Standard Chartered Bank have settled with the Commission. Investec Limited and Investec Bank Limited remain respondent banks required to file answering affidavits.”
“This appeal will provide the Constitutional Court with an opportunity to pronounce on whether the South African competition authorities have jurisdiction to investigate and prosecute firms that are based outside of the Republic whose anti-competitive conduct affects the South African economy,” the Competition Commission Commissioner Doris Tshepe said.