IN THE COMPETITION APPEAL COURT OF SOUTH AFRICA
CASE NO: 215/CAC/APR231
In the matter between:
THE COMPETITION COMMISSION OF SOUTH
AFRICA
Applicant
And
BANK OF AMERICA MERRILL LYNCH
INTERNATIONAL
DESIGNATED ACTIVITY COMPANY
First Respondent
BNP PARIBAS Second Respondent
JP MORGAN CHASE AND CO. Third Respondent
JP MORGAN CHASE BANK N.A Fourth Respondent
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED
Fifth Respondent
STANDARD NEW YORK SECURITIES INC. Sixth Respondent
INVESTEC LIMITED Seventh Respondent
STANDARD BANK OF SOUTH AFRICA LIMITED Eighth Respondent
NOMURA INTERNATIONAL PLC Ninth Respondent
STANDARD CHARTERED BANK Tenth Respondent
1 The Judgment deals with the various applications under Competition Appeal Court Case Numbers:
213/CAC/Apr23; 214/CAC/Apr23; 215/CAC/Apr23 ; 216/CAC/Apr23 ; 217/CAC/Apr23 ; 218/CAC/Apr23 ; 219/CAC/Apr23 ;
220/CAC/Apr23 ; 221/CAC/Apr23 ; 222/CAC/Apr23 ; 223/CAC/Apr23 ; 224/CAC/Apr23 ; 225/CAC/Apr23 ; 226/CAC/Apr23 ;
227/CAC/Apr23; 228/CAC/Apr23; 229/CAC/Apr23/ 230/CAC/Apr23; 231/CAC/Apr23; 232/CAC/Apr23; 233/CAC/Apr23;
234/CAC/Apr23; 235/CAC/Apr23; 236/CAC/Apr23; 237/CAC/Apr23; 238/CAC/Apr23; 239/CAC/Apr23; 240/CAC/Apr23;
241/CAC/Apr23; 242/CAC/Apr23; 243/CAC/Apr23; 244/CAC/Apr23.
2
CREDIT SUISSE GROUP Eleventh Respondent
COMMERZ BANK AG Twelfth Respondent
MACQUARIE BANK LIMITED Thirteenth Respondent
HSBC BANK PLC Fourteenth Respondent
CITIBANK N.A Fifteenth Respondent
ABSA BANK LIMITED Sixteenth Respondent
BARCLAYS CAPITAL INC. Seventeenth Respondent
BARCLAYS BANK PLC Eighteenth Respondent
HSBC BANK USA,
NATIONAL ASSOCIATION INC.
Nineteenth Respondent
MERRIL LYNCH PIERCE FENNER AND SMITH INC. Twentieth Respondent
BANK OF AMERICA, N.A. Twenty First Respondent
INVESTEC BANK LIMITED Twenty Second Respondent
CREDIT SUISSE SECURITIES (USA) LLC Twenty Third Respondent
NEDBANK GROUP LIMITED Twenty Fourth Respondent
NEDBANK LIMITED Twenty Fifth Respondent
FIRSTRAND LIMITED Twenty Sixth Respondent
FIRSTRAND BANK LIMITED Twenty Seventh Respondent
STANDARD AMERICAS INC Twenty Eighth Respondent
JUDGMENT
THE COURT
3
Introduction
[1] This appeal is triggered by a decision of the applicant (‘the Commission’) to
prosecute 28 banks (‘the respondent banks’) including South African and foreign
banks which, the Commission alleges, colluded and conspired with each other to
manipulate the foreign exchange rate in respect of the United States Dollar (USD) and
the South African Rand (ZAR) to their own benefit. The Commission has brought this
case on the basis that the respondent banks have contravened s 4(1)(b)(i) and (ii) of
the Competition Act 89 of 1998 (‘the Act’).
The chronology leading to this appeal
[2] The litigation relating to this complaint has a long and torturous history. On 15
February 2017 the Commission referred its complaint against some nineteen
respondents for alleged price fixing and market division in contraventions of s 4(1)(b)(i)
and (ii) of the Act.
[3] The referral to the Competition Tribunal elicited a flood of exceptions generated
by the respondent banks. Eventually on 12 June 2019 the Tribunal handed down its
decision in respect thereof, the basis of which will be discussed presently. Following
appeals by a number of the respondent banks and a cross appeal by the Commission,
a decision was taken by this Court on 28 February 2020, the effect of which was to
give the Commission a ‘final opportunity’ to file a new referral affidavit to substitute
and replace the referral affidavit which had been placed before the Tribunal in 2017.
The details of this judgment will be discussed later.
[4] The referral which the Commission was ordered to file was duly done on 1 June
2020. Again the respondent banks filed exceptions together with applications for
4
dismissal of this referral. The matter was heard by the Tribunal between 29 November
and 6 December 2021 but for unexplained reasons an order and the reasons upon
which the order was predicated were only issued on 30 March 2023. It is against this
order that the respondent banks have approached this Court on appeal.
[5] The appeal raises complex points of principle with regard to competition law. It
requires of this Court that it negotiate between the Scylla of cartel behavior, the most
egregious form of anti -competitive conduct, and the Charybdis of the potential of
regulatory overreach of the principle relating to the prohibition of cartel behavior; hence
the justification offered by the respondent banks for the ensuing litigation.
[6] It is useful to provide a more detailed description of the earlier litigation, in that
aspects thereof including the significance of the order of this Court of 20 February
2020 were subject to intense forensic scrutiny by the parties to this litigation.
The 2019 decision of the Competition Tribunal
[7] The major issue which confronted the Tribunal in its 2019 decision concerned
its jurisdiction to hear the Commission's complaint in that a number of the respondent
banks alleged that they were peregrini; that is firms that were neither domiciled nor
carried on business in South Africa. The distinction was then made between “pure”
peregrini; that is those respondent banks which were neither domiciled nor carried on
business in the Republic and “local” peregrini being banks with some presence in
South Africa by way of a local branch or a representative office in South Africa. In
addition, the Tribunal was confronted with arguments with regard to subject matter
5
jurisdiction. In this connection it held that none of the referral affidavit provided
evidence as to how the conduct of any of the traders employed by the respondent
banks were linked to an effect within the Republic sufficient to justify subject matter
jurisdiction in terms of s 3(1) of the Act. The Tribunal concluded thus:
‘If the Commission clarified its referral in the manner it suggested in this oral argument
with the addition of the particular required in these reasons. These will resolve most
of the exceptions which relate both to no cause of action or vague and embarrassing.
There will now be a coherent case of what the conspiracy was, what was entered into
and how it ended. If it indeed has. It will also explain why the relationship in the firms
is one of competitors as distinct from one between buyer and seller.’
[8] The Tribunal held that it had jurisdiction over the local peregrini but, insofar as
the pure peregrini were concerned, it decided that they could be subjected only to a
declaratory order which would include the proviso that the relief that could be granted
at the end of a trial excluded the operation of sections 59 and 65 of the Act. An order
to this effect was then issued which was the subject of an appeal to this Court.
[9] At para 53 of its 2020 judgment, this Court described the challenge posed by
this dispute as turning;
‘Essentially on whether the law relating to personal jurisdiction can be rendered
congruent with the objects of s 3(1) of the Act and more generally with the overall
purposes of the Act, including the promotion of efficiency, adaptability and the
development of economy and the provision of consumers to competitive prices and
product choices as set out in s 2(a) and (b) of the Act.’
[10] In developed the common law relating to personal jurisdiction the Court said:
6
‘On the assumption that the Competition Commission can make out an adequate
showing that there was an overarching conspiracy between the respondent banks to
fix the rand / $ exchange rate in contravention of ss 4(1)(b)(i) and (ii), this would mean
that the case brought by the Competition Commission would involve the participation
of all of the banks, that is, local, local peregrini and pure peregrine, in an activity which
would contravene the central provision of the Act, namely, the prevention of cartel
activity. Assuming that the Competition Commission could make such a showing, this
in itself could indicate that there were adequate connecting factor s between each of
the parties and the practice sought to be adjudicated upon by the Tribunal.’ (para
56)
[11] In terms of this development of the law the Court held;
‘As the Competition Commission is afforded the last opportunity to file a legally
coherent complaint against the local peregrini banks (in terms of Tribunal’s order) it
follows that it should be afforded a similar opportunity against the foreign peregrini. At
that point of the litigation, it will be possible to make a sound and informed
determination as to whether they are sufficiently adequate connecting factors between
the foreign peregrini conduct and the suit brought by the Competition Commission to
justify the assumption of jurisdiction both personal and subject matter.’ (para 61)
[12] As a result of this reasoning the court made the following order.
‘The order of the Competition Tribunal is therefore set aside and replaced with the
following:
3.1 The applications for the dismissal of the complaint referral brought by the
pure peregrini, Bank of America Merrill Lynch International Limited (1); JP
Morgan Chase & Co (3); Australia and New Zealand Bank Limited (5); Standard
7
New York Securities Inc (6); Nomura International PLC (9), Macquarie Bank
Limited (13); HBC Bank USA, National Association (NA) (19); Merrill Lynch
Pierce Fenner and Smith (20) and Credit Suisse Securities (USA) LLC (23) are
dismissed subject to the following.
3.1.1 The Commission must file a new referral affidavit to substitute for
and replace all the complaint referral affidavits. This affidavit must be
filed within forty business days of this order.
3.1.2 The respondents will only be required to file their answers to the
new referral affidavit. The answers must be filed within 20 days of the
service of the new referral affidavit.
3.2 The new referral affidavit applies to the parties referred to in paragraph 1 of
the substitute order. It must:
3.2.1 In the case of all the named respondents set out the facts the
Commission relies on to allege that it was foreseeable that the
impugned conduct would have a direct or immediate, and substantial
effect in the Republic;
3.2.2 Confine the case to a single overall conspiracy (SOC), provided,
subject to 3.4.3 below, that the Commission is not restricted from
alleging that this may be founded on an agreement, arrangement or
concerted practice;
3.2.3 Indicate whether the same facts are relied on for proof of the
concerted practice or allege any different fact if they are not;
3.2.4 Allege whether its case for an SOC relies on proof of an express
agreement or arrangement or whether this is an inference based on
facts, if the latter, allege in general terms what those facts are;
8
3.2.5 Provide each respondent with a date, or period, in which they are
alleged to have joined the SOC or deemed to have joined the SOC;
3.2.6 Provide the facts that are relied on to prove that the particular
respondent joined or had joined the SOC;
3.2.7 If the SOC ceased;
3.2.7.1 provide what dates the SOC is alleged to have ceased;
3.2.7.2 what facts are relied on for establishing that the conduct
had then ceased; and
3.2.7.3 whether all the respondents remained participants in the
SOC on that date; and, if not, when the respective respondent/s
exited.
3.2.8 If the SOC is still alleged to be ongoing;
3.2.8.1 what facts this is based on; and
3.2.8.2 whether all the respondents are still part of it, if
not when the respective respondent/s exited;
3.2.8.3 in relation to the relationship between the
respondent bank and their respective traders;
3.2.8.3.1 is it alleged that some traders acted for
more than one respondent at the same time? If
so, details should be provided;
3.2.8.3.2 if a trader ceased to act for a
respondents’ bank, did this end the respondents’
participation in the SOC or if not, on what basis is
9
it alleged that the respondent’s participation
continued?
3.2.8.3.3 Is it alleged that all the traders named
as participants in paragraph 40 of the December
affidavit were so-called active participants or were
some so called passive participants.
3.3 The new referral affidavit must in addition:
3.3.1 in the case of all of the named respondents set out the facts on
which the Commission relies to allege that there are adequate
connecting factors between the parties and the jurisdiction of the
Competition Tribunal; sufficient to establish personal jurisdiction against
all named respondents.
4. In respect of the application for joinder brought by the Competition Commission on
12 January 2018 read with the supplementary affidavit in December 2018.
4.1 Leave to join the twenty sixth respondent (Investec Bank Limited) is
granted.
4.2 Leave to join HB US (19); MLPFS (20); BANA (21) and Credit Suisse
Securities (23) is deferred for consideration pending the Competition
Commission’s compliance with the requirements of paragraph 3 of this order.’
[13] This brief chronology of the torturous litigation that has taken place to date holds
significant implications for the disposition of this appeal. I highlight two consequences
of which account must be taken in the evaluation of the respective arguments wh ich
have been placed before the Court.
10
[14] In the first place the order of the Court which followed upon the earlier order of
the Tribunal did not envisage an expansion of the parties to the case which had been
brought before the Tribunal at the 2019 hearing. In other words, the order mandated
the Commission to reconfigure its r eferral affidavit so as to ensure that it met the
requirements of both personal and subject matter jurisdiction in respect of the parties
who had been already referred to the Tribunal.2
[15] The idea advanced by the Commission in the present dispute that further
parties could be added to its case subsequent to the order of this Court flies in the
face, not only of the text of the order of this Court but of the very purpose of the order
itself. That order speaks specifically to the fact that ‘the new referral affidavit applies
to the parties referred to in paragraph 1 of the substituted order and must ‘in the case
of all the named respondents set out the facts the Commission relies on to at least a
net that it was foreseeable that the impugned conduct would have a direct or
immediate and substantial effect in the Republic’.
[16] It is clear that the express wording of the text of this order envisaged a fresh
referral affidavit only insofar as the named respondents to the litigation which had
taken place before this Court were concerned. Of particular importance to the very
purpose of this order was the use of the words ‘to grant the Commission a final
opportunity’ to bring before the competition adjudication bodies, being the Tribunal
and, if necessary, this Court, a referral affidavit that passed legal muster. This order
was designed as a result of an attempt by this Court to provide the Commission an
2 This Court in its 2020 judgment at para 67 confirmed that the Commission can add parties to the complaint but
only prior to referral to the Tribunal. This legal position is also relevant to a justifiable reading of the 2020
order.
11
opportunity to reconfigure its case. It did so because of the gravity of the allegations
which had been made in respect of cartel activity by the respondent banks.
[17] A further implication of both the 2019 decision of the Tribunal and the 2020
decision of this Court was that it was incumbent upon the Commission to confine its
case to a single overall conspiracy (SOC) in which it would show that all of the named
respondent banks were participants therein. This would allow the Commission to
contend that the Tribunal had both the necessary personal and subject matter
jurisdiction over all the respondent banks.
The further referral affidavit
[18] The Commission was obliged to file a referral affidavit which addressed the
inadequacies of its initial referral affidavit which had been found so lamentably:
wanting by the Tribunal and this Court. It did so on 1 June 2020 by compiling a referral
affidavit comprising some 106 pages.
[19] The key paragraphs of the affidavit are the following: In the first place, the
Commission alleges that, with effect from September 2007 until at least September
2013, the respondent banks reached an agreement and/or coordinated their activities
to participate in a single overarching conspiracy. The participants of the conspiracy
pursued a single anti -competitive economic objective, namely, the manipulation and
the extortion of normal competitive conditions in the trading of the USD/ZAR
currency…’ The Comm ission alleged that the banks had achieved this objective
through direct and/or indirect fixing of prices in respect of the trade in the USD/ZAR
currency pair and the division of markets through the allocation of customers in the
USD/ZAR currency pair.
12
[20] The Commission summarized the conspiracy thus:
‘The general and consistent terms of the conspiracy were: the respondents’ traders
would participate, actively and passively, in frequent and regular communication and
contact with one or more traders employed by or representing competing banks …
when engaging in trading the USD/ZAR currency pair. The Commission went on to
state that ‘it does not know the date on which the single overarching conspiracy
between the respondent banks ceased to operate or if it has indeed ceased to operate.‘
[21] The Commission averred that the existence of a SOC, its terms and objectives
can be inferred from certain key facts. In particular, the Commission relied on
extensive level of communication and contact between competing traders being
engaged in trading o f the USD/ZAR currency pair; the lengthy period over which the
frequent and regular communication and contact between the competing traders
persisted, the continuity and the mode of communication between competing traders
when engaged in trading of the USD/ZAR currency pair. The Commission emphasized
the existence of numerous engagements in chatrooms on the Bloomberg instant
messaging platform whose participants were competing traders engaged in the
USD/ZAR currency pair and the frequent presence of competi ng traders in the
Bloomberg chatrooms.
[22] It also referred to ‘unusual behavior in the markets in 2007 and 2013, in
particular consistent prices over time, across banks, an absence of random
fluctuations and volatility in foreign exchange market prices over time and across
13
banks, the use of round figures for quotes, lack of randomness and volatility in the
spot exchange rate and the consistent spread of 0.0500 and 0.1000 charged by South
African local banks (except for RMB).
[23] Of significant importance to the referral affidavit was the mode of
communication for implementing the conspiracy. The Commission took the view that
‘the respondents made the instant messaging platform of the Bloomberg terminal
available to their employe es and representatives.’ A member of the chatroom is
defined in the referral affidavit as the person who is the creator and administrator of
the chatroom or has accepted an invitation to join a chatroom’. A participant in the
chatroom is defined as a p erson ‘who logged onto, alternatively opened, the instant
messaging platform on the Bloomberg terminal, entered a chatroom to which they
were a member; alternatively created a new chatroom and invited others to join, and
remained present in the chatroom as either an active or passive participant.
[24] In turn these terms are defined as follows: An active participant ‘is a person
who had entered a chatroom at a particular time or over a particular period, is posting
instant messages in the chatroom or receiving messages by other participants in
response to an instant message they posted’. A passive participant ‘is a person who
had entered a chatroom and at a particular time or over a particular period is not
‘posting instant messages in the chatroom but remained present in the chatroom in
that they had not exited the chatroom.’ Significantly, the Commission then says the
following:
‘As members or alternatively participants in implicated chatrooms, the respondents’
traders knew of the conduct planned or put into effect by the other participants of the
conspiracy to implement the terms or further the objective of the conspiracy; or they
could reasonably have foreseen it and were prepared to take risk.
14
The respondents’ traders accordingly acted with the intention to implement the terms
or further the objective of the conspiracy when they created chatrooms or accepted
invitations to become members, entered and became participants in implicated
chatrooms, alternatively remained as participants in the implicated chatroom.’
[25] The Commission sets out its view of the effect of this conduct as follows:
‘The conspiracy had a direct or immediate and substantial effect in the Republic and it
was foreseeable that the impugned conduct would or had the potential to have such
an effect. The common manner in which the effects of the impugned conduct are felt
is buyers of ZAR pay artificially inflated prices for buying the currency and sell at
artificially reduced prices when selling the currency.’
[26] The foundation of the Commission’s case with regard to personal jurisdiction
was that the significant connecting factor was a clear single overall conspiracy to
manipulate the rand in which all of the respondent banks were participants.. The
subject matter jurisdiction, on the other hand, was satisfied in that all the respondent
banks were participants in the very conspiracy which had a direct immediate and
substantial effect in the Republic and that it was foreseeable that the impugned
conduct would have or h ad the potential to have this effect. This passage from the
referral affidavit clearly mirrors the provisions of s 3(1) of the Act which provides that
this Act applies to all economic activity within or having effect within the Republic, the
section which describes the requirements for subject matter jurisdiction.
[27] It is evident from the description of the core of the referral affidavit that the
Commission’s case was based on a single overarching conspiracy. It is to that
concept that I must now turn.
15
A single overarching conspiracy (SOC)
[28] Counsel for the Commission contended that the requirements to establish an
infringement based on a SOC could be found in European jurisprudence, in particular,
in Commission v Anic Partecipazioni [1999] ECR 1 -4 125 and Team Relocations v
Commission Case T-205/08EUT (2011). On this basis counsel for the Commission
summarized the requirements for an SOC as:
(i) A common anti-competitive objective, being the existence of an overall
plan pursing a common economic objective;
(ii) participation, being each firm’s “intentional’ contribution by its own
conduct to the common objectives pursued by all the participants; and
(iii) knowledge, being that the firm was either aware of the actual conduct
planned or put into effect by other undertakings in pursuit of the same
objectives or it could reasonably have foreseen it and that it was
prepared to take the risk.
[29] It is important when borrowing from comparative authority to ensure that the
factual context in which the test which is now sought to be applied is South Africa is
carefully analyzed. Team Relocations involved the participation by parties to a cartel
in the international removal services sector in Belgium in which prices were fixed,
sharing customers and manipulating the procedure for the submission of tenders were
present thereby constituting a single continuous infringement of Article 81 EC (now
Article 101 of the European Treaty). It appeared that the cartel lasted from October
1984 until September 2003. In brief the cartel operated on the basis of written price
16
fixing agreements with the practice of commissions and cover quotes having been
introduced at the same time. There was clear evidence of the practice of manipulation
of commissions which were treated as an indirect fixing of prices for international
removal services in Belgium since a cartel member issued invoices to other members
for commissions or rejected offers or offers which were not made by referring to
fictitious services. The amounts represented by those commissions were then
invoiced to customers.
[30] In respect of the cover quotes the European Commission contended that
through the submissions of these quotes a removal company which wanted the
contract ensured that the customer paying for a removal service received several
quotes. To that end, a company indicated to its competitors the total price that it would
quote for the planned removal which was higher than the price quoted by the company
itself. Thus, the system in operation was based on fictitious quotes submitted by
companies which did not intend to carry out the removal. This was, in the view of the
European Commission, a manipulation of the tendering procedure to ensure that the
price quoted for removal was higher than it would have been in a competitive
environment. These arrangements were in place until 2003. Having the clear
objective of price fixing and market sharing and thus distorting competition.
[31] In setting out the basis for a SOC the European Court said:
‘[A]ccording to the settled case law of the Court the infringement of Article 81EC can
result not only from an isolated act but also from a series of acts or continuous conduct
even where one or several elements of that series of acts or continuous conduct could
also constitute in themselves and taken in isolation an infringement of that provision.’
(para 49)
17
[32] Applying this principle to the facts the Court said:
‘[t]he Commission’s agreement and the cover quotes agreement pursued the same
objective as the price fixing agreement, that common objective being to establish and
maintain a high price level for the provision of international removal services in Belgium
and to share this market. It then stated that it was common ground that Team
Relocations had participated in two out of the three agreements described in contested
decision.’ (para 52)
[33] The Court then qualified this dictum by saying the following:
‘[B]y making clear that the responsibility of an undertaking which participated in a
single and continuous infringement is limited with regard to the conduct planned or put
into effect by the other participants and of which it was or should have been aware to
the actions which occurred during the period of participation of that undertaking in that
infringement, the case law referred to … necessarily accepts that an undertaking may
be held responsible for a single and continuous infringement even if it does not
participate in all of the offending conduct of which it is made up.’ (para 55)
[34] In short, this judgment does not hold that the intentional contribution to the
common objectives can be established only where the undertaking concerned has
contributed to those objectives since the start of the infringement or on condition that
it pursued ways identical to those put into effect when the infringement commenced.’
(para 56)
18
[35] It is now possible to examine the implications of this judgment for the present
dispute in the light of the reliance placed thereon by the Commission’s counsel. Not
all of the parties have to participate in all of the activity which constituted the overal l
conspiracy. Not all of the parties have to have participated since the commencement
of the conspiracy nor has their participation to be identical to that of other parties in
the conspiracy. But what is clear from the facts of Team Relocations is that by
reference to the commission agreements and the cover quote agreements, the same
objective was pursued; that is a price fixing agreement designed to establish and
maintain a high price level for the provision of the international removal service s in
Belgium and to share this market in terms of a clear agreement. In the case of Team
Relocations, it had participated in two of the three agreements described; hence the
evidence that the commissions and cover quotes agreed to by Team Relocations were
deemed to justify the conclusion that it was a participant in the overall conspiracy.
[36] For these reasons, pleading a SOC is an onerous exercise which requires, in
this case, that the Commission provides plausible evidence that, even if not a
participant in all of the events which made up the SOC, a respondent bank’s conduct,
based essentially on that of its traders constitutes sufficient evidence to justify that
there was an intentional contribution to the common objectives of the conspiracy and
that the respondent bank were aware or should have been aware of the offending
conduct of the initial participants and hence was party to the infringement by way of a
SOC. Thus, it could be held to be a party to the overall conspiracy, notwithstanding
that it might not have participated in each and every event that made up the overall
conspiracy.
19
Further implications from the analysis of the 2020 order
[37] The analysis which has now been undertaken concerning the 2020 order of this
Court leads inexorably to the conclusion that the Commission was required to revisit
its significantly imperfect referral affidavit which had been the subject of the litigation
before the Tribunal and Court culminating in the 2020 order and that it reconfigure the
referral in order that it passes the test which had been set down by this Court. It was
not envisaged that a fresh referral would be generated and that banks which had n ot
been part of the initial referral affidavit could now be added to what was intended to
be the redrafting of the initial referral affidavit, as opposed to a generation of a fresh
one.
[38] A further implication arises with regard to the question of jurisdiction. In its 2020
judgment the Court rejected the submissions of the Commission that s 3 (1) of the Act
encompasses both personal and subject matter jurisdiction. It was only the latter that
was dealt with in terms of s 3 (1) of the Act. Insofar as personal jurisdiction was
concerned, it is necessary to recapitulate what the Court said at para 56,
‘On the assumption that the Competition Commission could make an adequate
showing that there was an overarching conspiracy between the respondent banks to
fix the Rand/ $ exchange rate in contravention of s 4 (b) (i) and (ii) of the Act, this would
mean that the case brought by the Competition Commission involved the participation
of all of the banks that is local, local peregrini and pure peregrini in an activity which
had contravened a central provision of the Act, namely, the prevention of cartel activity.
Assuming that the Competition Commission could make such a showing, this in itself
could indicate that there were adequate connecting factors between each of the parties
and the practice sought to be adjudicated upon by the Tribunal.’
20
[39] It is important to emphasize that care must be taken not to conflate subject
matter and personal jurisdiction. The point of the 2020 judgement was that, if the
jurisprudence regarding personal jurisdiction was developed beyond that of the
constraints of the common law, it was important in this case that, at the very least, the
overarching conspiracy pleaded by the Commission should show that all of the banks
were connected to that overarching conspiracy; that all were participants in an
overarching conspiracy designed to have a detrimental effect on the South African
economy by virtue of their joint conduct. To plead an SOC meant having careful
regard to the principles set out in Team Relocations, thereby ensuring a clear showing
that the available eviden ce fell within these principles. This was key to establishing
personal jurisdiction over the peregrini respondents.
The Tribunal’s decision which is the subject of this appeal
[40] Examining the various contacts between the respondent banks, particularly in
the chatrooms on digital platforms with emphasis on the two core chatrooms being the
Old Gits and ZAR chatrooms, the Tribunal was required to address an argument of
the Commission that there was not an overall SOC between the foreign and local and
not, as some of the respondent banks argued, that there were a series of unlinked
mini SOC’s between various of these banks. In support of the Commission’s argument
the Tribunal held:
‘One might ask why and how such a situation would prevail in the world – as if by some
act or spontaneous combustion traders in three parts of the globe decided to engage
in mini-conspiracies to manipulate the USD/ZAR rate over a similar time period? If we
are to assume that these mini -SOCs stood independently of each other with no
common participant or contact point, and that the objectives of all these mini -SOCs
was the same namely that the USD/ZAR rate should be manipulated to their
21
advantage, how they be able to achieve this in a context where the ZAR is one of the
most traded currencies in the world and international trading occurs on electronic
platforms across the world?‘ (para 135)
[41] The evidence provided by Mr Duncan Howes of Absa Bank (sixteenth
respondent) which was a successful corporate leniency applicant was clearly
employed in the Commission’s formulation of its theory of harm. In terms thereof the
Tribunal ultimately concluded that the Commission’s referral ‘read holistically, sets out
sufficient alleged facts to make out a prima facie case that of an SOC between foreign
and local banks which suffices to establish adequate connecting factors to establish
personal jurisdiction over all the peregrini.’
[42] In relation to the question of subject matter jurisdiction the Tribunal concluded
thus:
‘Given that the very objective of the cartelists was to manipulate the USD/ZAR
exchange rate so that they could make a higher profit, common sense and logic tells
us that it could be foreseeable that customers would suffer as a result, either directly
as investors in a given transaction or in the prices of goods and services for export and
import purposes.’
[43] The Tribunal then addressed the argument about the limitation of the 2020
order of this Court by dealing with the question of whether there could be a valid
initiation after the matter had been referred to the Tribunal. Relying heavily on the
decision in Competition Commission of South African v Pickfords Removals SA (Pty)
Ltd 2021 (3) SA 1 (CC) it confirmed that the Commission is required under s 49 B of
the Act to initiate a complaint of a prohibited practice but that it could do so, especially
in a cartel case by way of a tacit initiation against a respondent at any time wit hout
22
fearing the specter of prescription in terms of s 67 (1); that is the Commission was not
barred from referring against respondents or joining additional respondents after it
referred a complaint of a prohibited practice to the Tribunal.
[44] There was much debate in the Tribunal with regard to the question of
compliance with the 2020 order of this Court. The Tribunal found that alleged non
compliance with the order was not a discreet ground of objection and could not be
relied upon by any of the bank respondents to ‘have a second bite of the cherry’. It
also went on to find that the CAC order could not be interpreted to fetter the Tribunal’s
discretion or interfere with the Commission’s independence and discretion to refer
additional details or amendments to its referral.
[45] Finally, the Tribunal dealt with the requirements of Tribunal Rule 15 (2) which
reads thus:
‘Subject to Rule 24(1), a Complaint Referral must be supported by an affidavit setting
out in numbered paragraphs –
(a) A concise statement of the grounds of the complaint; and
(b) The material facts or the points of law relevant to the complaint and relied on by
the Commission or complaint, as the case may be.”
[46] The Tribunal concluded that the referral affidavit which extended to 106 pages
contained adequate details to justify a conclusion that, read as a whole, it prima facie
showed that there was a SOC between foreign and local banks to manipulate trading
of the USD/ZAR currency pair.
The question of respondents who were not traders
23
[47] There was an argument with regard to certain of the respondents who were
joined as parties. The sixth respondent, SNYS, had corresponded with the
Commission to inform it that the two traders who were alleged to have been involved
in currency manipulation on its behalf, namely Messrs. Katz and Friedman, had never
been employed by sixth respondent and that they had only been employed to the
extent relevant by the twenty eighth respondent, Standard America Inc. To this, the
Tribunal said that the Commission had been caught “on the horns of a dilemma”, being
asked to withdraw its referral against the sixth respondent but it could not be certain
that it would succeed in joining the twenty eighth respondent.
[48] Similar objections were taken by the twenty first respondent (BANA) that it was
the holding company for the twentieth respondent (Merril Lynch Pierce Fenner and
Smith Inc) and therefore it was improperly joined to these proceedings. To this the
Tribunal said ‘the Commission was entitled to join a holding company. Joining BANA,
a holding company, might in its view, be relevant for the purposes of s 59 (3) A in the
event that the Commission seeks to hold it jointly and severally liable for the actions
of its subsidiaries.
[49] The same approach was taken by the twenty fourth respondent, Nedbank
Group Bank, which was also a holding company and not a registered or authorized
bank and which did not trade in foreign currency. The Tribunal again relied on s 59
(3) A, to join the Ne dbank Group to this litigation. The Tribunal also adopted this
approach to the twenty sixth respondent, First Rand Limited, which was not authorized
to deal in foreign currency and was only connected by virtue that the twenty seventh
respondent (FirstRand Bank Ltd) was a wholly owned subsidiary.
24
The Appeal
[50] Apart from the tenth respondent which announced during the hearing that it had
reached a settlement agreement with the Commission before this Court, the rest of
the respondent banks persisted with their case based on an exception and/or
dismissal of the referral.
[51] The first question which was raised by counsel for the Commission concerned
the appealability of the decisions taken by the Tribunal. It is this issue to which I must
first turn.
Appealability
[52] Counsel for the Commission, in contending that the Tribunal’s order was not
appealable, submitted that the Tribunal’s finding in respect of the various applications
were in substance exceptions and thus their dismissals were based on the ordinary
principles applying to the dismissal of an exception. Relying on the recent decision of
the Supreme Court of Appeal in TWK Agriculture Holdings (Pty) Ltd v Hoogveld
Boerdery Belleggings (Pty) Ltd 2023 (5) SA 163, the Commission contended that the
Tribunal’s findings and orders in its determination were not definitive of the rights
between the parties. On the basis of the general rule as articulated in TWK, relating
to the dismissal of exceptions, no appeal could be brought against these decisions of
this Court. In this connection paragraph 31 of TWK was cited.
25
‘We are here concerned with a particular matter: the dismissal of two grounds of
exception that go to the heart of the plaintiffs’ cause of action. Applying the doctrine
of finality, as I have sought to explain, a long line of authority in this Court has held that
the dismissal of an exception is not appealable because no legal obstacle stands in
the way of the trial court finally deciding the point of law. The dismissal of an exception
is simply not a final decision, and until the matter i s finally decided, an appeal should
not lie to this Court to pre-empt what the high court has yet to bring to finality.’
[53] In addition, counsel submitted that s 37(1) of the Act was definitive of this issue.
To the extent relevant it reads thus:
‘The Competition Appeal Court may-
(a) review any decision of the Competition Tribunal; or
(b) consider an appeal arising from the Competition Tribunal in respect of –
(i) any of its final decisions other than a consent order made in terms of s 63;
or
(ii) any of its interim or interlocutory decision that may, in terms of this Act, be
taken on appeal.’
[54] Emphasis was placed on the provision that this Court can only consider an
appeal arising in respect of ‘ any of its final decisions’ ; that is of the Tribunal. In the
view of the Commission, the Act had effectively incorporated the principles of Zweni v
Minister of Law and Order 1993 (1) SA 523 (A), namely that the only order of the
Tribunal that could be appealed to this Court, save for certain interim interlocutory
decisions which are not necessarily relevant to this case, was one that had to be final
in effect, it could not be susceptible to alterations by the court which handed it down,
26
it had to be definitive of the rights between the parties and it had to have the effect of
disposing at least of a substantial portion of the relief claimed in the main proceedings.’
[55] Following TWK, supra the Commission advanced a submission that the
concept of ‘interests of justice’ should not be taken into account in deciding whether
this matter could be appealed to this Court. The reliance on TWK requires significant
qualification. Firstly, the Court in TWK confirmed dicta of the Supreme Court of
Appeal in Maize Board v Tiger Oats Ltd and others 2002 (5) SA 365 (SCA) at para 10
of TWK where it was made clear that, while a dismissal of an exception is not
appealable, an exception in respect of the jurisdiction of a court is appealable. For
this reason alone, it is incorrect to contend that a final decision in respect of s 37 (1)
(b) of the Act is not envisaged where an exception taken to the jurisdiction of Tribunal
is not in and of itself a final decision whi ch could be subject to the right of an appeal
to this Court. This kind of exception had clearly been treated by our courts as final
and thus susceptible to an appeal.
[56] The submissions of the Commission then became even more curious. Almost
a year before TWK was delivered, the Constitutional Court handed down judgment in
United Democratic Movement and another v Lubashe Investment Group (Pty) Ltd and
others (2023) (1) SA 353 (CC). Briefly this appeal concerned a situation where the
Supreme Court of Appeal struck a matter from the role because it was not within its
jurisdiction to entertain it, in that what was involved was an interim order which was
not regarded as final. Therefore, in the view of the Supreme Court of Appeal. it was
not appealable. The Constitutional Court examined the existing jurisprudence
sourced in the Zweni test and held that the test of appealability now includes
27
consideration of the interests of justice and no longer is restricted to the common law
test as set out in Zweni. (para 43)
[57] The Court also held that the majority of the Supreme Court of Appeal had erred
in holding that the interests of justice did not render the impugned interim interdict an
appealable decision within the meaning of s 16 (1) (a) of the Superior Couts Act.
Further, the Court held that the Supreme Court of Appeal was required to make a
value judgment as to whether the impugned interim interdict was the kind of decision
that is subject to appeal. (para 46)
[58] Inexplicably this judgment was ignored in the TWK judgment raising the
obvious difficulty confronting this Court which must be resolved. The judgment in
TWK is cited as authority of the SCA but in effect it ignored the jurisprudence of the
Constitutional Court with regard to the question of interest of justice. This permits this
Court to take account of the interests of justice in assessing whether a decision is of
the kind which under the present law is subject to appeal and which law is therefore
relevant to the wording of s37(1) of the Act. It is regrettable that this latest
jurisprudence was not referred to by counsel in argument before this Court.3 It should
be noted that without explanation and within the same term of the Supreme Court of
Appeal, the Court in Polokwane Municipality v Double Four Properties and another
[2023] ZASCA 158 the SCA at para 8 finally referred to the binding authority of
Lubashe.
3 See also Ciba Packaging (Pty) Ltd t/a CIB APAC v Timelink Cargo (Pty) Ltd [2023] ZASCA 161 for the same
omission of the Constitutional Court judgement in Lubashe
28
[59] In addition, this issue was also canvassed in considerable detail in the
instructive judgment of this Court in Competition Commission v Shoprite Checkers
(Pty) Ltd and another [2020] ZACAC 9. Although not relying on the interests of justice
test Vally J said at para 20:
‘Both the Zweni and the interest of justice tests are fact specific. The interests of justice
test have not made the requirement of the attributes referred to in Zweni redundant.
The differences between the two tests should not be exaggerated. The inter ests of
justice test merely make allowance for a situation where one or more attributes referred
to in Zweni may be absent or if there are other attributes which standout such as an
ongoing harm to the appellant caused by the interim order into the interes t of justice
test has certainly opened the sluice gates allowing for all interim orders to flow freely
to the appeal court.’4
[60] In summary, the argument of the Commission against the appealability of the
decision of the Tribunal must stand to be rejected. In the first place, the question of
personal and subject matter jurisdictions is central to the appeal. Many of the
arguments which were put up by the respondent banks and which manifestly required
determination by this Court was that the Tribunal had made a determination regarding
its jurisdiction which, in effect, was a final decision. To the extent that it was argued
that at some point in the midst or even towards the end of an extremely lengthy trial
(and if all of the respondent banks are subjected to a trial it is likely that the length
thereof will break all South African jurisprudential records) the question of jurisdict ion
can somehow be raised is a signal to apply the interest of justice test. Manifestly it is
in the interests of justice that this prior question be dealt with before embarking on a
4 Another example of adopting a test other than the strict Zweni test by this Court is to be found in Counsel for
Medical Schemes and another v South African Medical Association and others [2015] ZACAC 6
29
lengthy and costly trial which of its nature will raise profound reputational questions for
respondent banks, namely that they participated in an SOC. It is not that cartels
should not be held accountable to the law; far from it, but expedition of the re solution
of this kind of dispute is important. A further reason for justifying appealability is that
this Court is entitled to examine the nature of its own order of 2020 and whether there
has been compliance therewith.
The merits of the Appeal
[61] The core finding of the Tribunal was that ‘the Commission’s referral read
holistically sets out sufficient alleged facts to make out a prima facie case for a SOC
between foreign and local banks. To come to this conclusion the Tribunal was
required to find that on the basis of the referral a prima facie case of a single
overarching conspiracy had been made.
[62] In summary, the respondent banks raised four issues, albeit that different
respondent banks relied, on some or at least one of the following:
1. the referral has not complied with the requirements of the 2020 order of this
Court in that the Commission failed to plead facts which that order required
the Commission to do in its redrafted referral affidavit.
2. the referral failed to demonstrate the existence of personal and subject
matter jurisdiction in respect of peregrini banks and subject matter
jurisdiction in respect of incola banks and local peregrini banks;
3. the referral is vague and embarrassing in that insufficient facts was set out
in the referral affidavit to show that the respondent banks had joined and/or
participated in a single overarching conspiracy,
30
4. certain of the respondent banks were improperly joined by the Commission.
[63] There are thus discreet pieces to the legal puzzle created by this litigation. It
is best to demarcate them into their separate elements:
1. Can a holding company be joined where it is not a trader in currency and
employed none of the implicated transfers?
2. Can parties be joined which were not part of the referral to the Tribunal when
the matter was referred to it and heard in 2019?
3. What is the position regarding parties who provided information that they did
not employ any implicated person, or that even though an implicated person
was employed by it, such person was not employed in the capacity of an
authorized trader?
4. In the case against the pure peregrini, was personal jurisdiction established.
This finding is relevant in that this Court’s 2020 order required that the
Commission provide greater detail to show the existence of an SOC among the
respondent banks referred to in the referral affidavit.
5. Has the establishment of subject matter jurisdiction in respect of local
peregrinus and incola banks been established?
The holding company question
[64] The first respondent (Bank of America Merril Lynch), twenty first respondent
(BANA), twenty fourth respondent (Nedbank Group Ltd) and twenty sixth respondent
(FirstRand Ltd) were joined on the basis that they were holding companies of banks
which it was alleged were involved in the conspiracy.
31
[65] In the case of holding companies, the Tribunal regrettably seemed to defer
uncritically to the Commission and thus failed to take account of the fact that a holding
company and a subsidiary are distinct corporate entities. The mere fact that the
holding company owns the shares of a subsidiary does not establish a case against
the former. Indeed, the only basis by which the Tribunal could come to this conclusion
was by way of reference to s 59 (3)(A) of the Act; that is that the Tribunal’s finding of
liability for contravention of s4 of the Act was not the only basis for the joinder of a
holding company because the latter could also be joined on the basis that the
Commission sought an administrative penalty in terms of s 59(3)A of the Act.
Regrettably this is an extremely ill -considered justification for such a decision in that
this section was only introduced with effect from 12 July 2019, that is after the referral.
It was clear that the section does not operate retrospectively. Besides, no suggestion
was made by the Commission in the referral affidavit that the purported joinder of the
holding companies concerned was pursuant to the provisions of s 59(3)(A) of the Act.
[66] This finding disposes of the case brought against first respondent, the twenty
fourth respondent and twenty sixth respondent. Furthermore, the fact that the sixth
respondent clearly stated on affidavit that neither Katz nor Friedman was employed
by it but in fact were employed by the twenty eighth respondent and that this had been
clear from the papers before this Court justifies a similar conclusion that there was no
basis for the joinder of the sixth respondent. The Commission, knowing these facts
and knowing therefore that it was the twenty eighth respondent who employed the said
Katz and Friedman, should have desisted from attempting to join the sixth respondent.
The effect of the of the order of this Court of 2020
32
[67] The Commission contended that it was permissible to include additional parties
even after the complaint had been referred to the Tribunal as it had in 2017 and which
formed the basis of the case considered by the Tribunal in 2019. The Commission
relied on the judgment of the Constitutional Court in Pickfords particularly at para 21
of decision. This dictum does not support the argument, that, after a referral to the
Tribunal has been made, further parties can be added. What the judgment in Pickfords
made clear (particularly at para 21) was that a complaint is against a practice not
specific parties; hence the Commission can add parties to the complaint after the
generation of the initial complaint but there is no basis to contradict this Court’s 2020
judgment at para 67 regarding the ‘cut off’ point for a further party to be added to the
complaint; that is, after the referral.
Allegations to establish the single overarching conspiracy: A detailed examination
[68] Relying on the decision in Teams Relocations, supra, the Commission based
its entire case on the three requirements which were necessary to prima facie
establish a single overarching conspiracy, namely a common anti -competitive
objective, each firm’s intentional contribution by its own conduct to the common
objectives pursued by all the participants and that each firm was either aware of the
actual conduct planned or put into effect by other undertakings in pursuit of the same
objectives or it could reasonably have foreseen the consequence it was prepared to
take the risk.
[69] To show the presence of these requirements, the referral affidavit states that
the respondent banks:
33
‘Pursued a single anti -competitive economic objective namely the manipulation and
distortion of normal competitive conditions in the trading of USD/ZAR currency pair;
either by a direct or indirect fixing of prices or the division of markets.’
[70] The referral affidavit suggests that “general and consistent terms of the
conspiracy” were to be found in the respondent banks’ traders participating actively or
passively in frequent and regular engagement and contact with one or more traders
employed by or representing competing respondent banks when engaged in trading
of the USD/ZAR currency pair.
[71] Through this communication and conduct, competing traders either offered or
provided assistance to their competitors by way of the coordination of trading activities,
requested and accepted assistance from competing traders by means of the
coordination of trading activities, offered and provided information to competing
traders, requested and accepted information from competing traders and reached
understandings on trading strategies and ensured the coordination of trading activity
in order to assist of be assisted by competing traders. In this way, they colluded in
respect of the bid -office spread for certain volumes on the relevant currency, the
coordination of trading strategies and trading activities and the treatment of certain
customers who purchased or sold the Rand.
[72] The referral affidavit then continues:
‘The Commission does not know the date on which the single overarching conspiracy
between the respondent banks ceased to operate, or if it has indeed ceased to operate.
The existence of the single overarching conspiracy, its terms and objective can be
inferred from the following facts:
34
[73] The referral affidavit then sets out in some detail the conduct and
communication which created and perpetuated the conspiracy. In a section of this
Referral Affidavit entitled “Conduct Implementing the Agreement”, the following
appears:
1.1. The extensive level of communication and contact between competing
traders when engaged in trading of the USD/ZAR currency pair;
1.2. The lengthy period over which the frequent and regular communication and
contact between competing traders persisted;
1.3. The continuity in the mode of communication between competing traders
when engaged in trading of the USD/ZAR currency pair;
1.4. The existence of numerous permanent chatrooms on the Bloomberg
instant messaging platform whose participants were competing traders
engaged in the trading of the USD/ZAR currency pair; and
1.5. The frequent presence of competing traders in the Bloomberg chatrooms;
2. The unusual behavior of the markets during 2007 to 2013 set out in the section of
this referral Affidavit entitled “The Effect of the Conduct”. In particular:
2.1. Consistent prices over time and across banks and an absence of random
fluctuations and volatility in the foreign exchange market prices over time
and across banks;
2.2. The use of “round figures” for quotes;
2.3. Lack of randomness and volatility in the spot exchange rate; and
2.4. The consistent spread of 0.0500 and 0.1000 charged by South African local
banks (except for RMB).’
35
[74] Counsel for the Commission submitted that the Commission’s referral had
contained sufficient allegations to establish the existence of the SOC’s anti -
competitive objects and effects. He accepted that it was necessary for the referral
affidavit to contain sufficient allegations to show each of the respondent bank’s
participation in this conspiracy. In counsel’s view, this intentional contribution to the
conspiracy was established in one of two ways. Firstly there were factual allegations
to demonstrate there was either a trader employed by the respondent bank who joined
and became a member or entered a chatroom in which conduct that implemented the
terms or furthered the objects of the conspiracy took place. Secondly the Commission
pointed to factual allegations that the relevant respondent banks with its employees or
representatives engaged in conduct including trading behavior that implemented the
terms of or furthered the objective of the conspiracy.
[75] The referral alleges that there were two central implicated chatrooms in the
conspiracy being:
1. The Old Gits chatroom, the longest running and most prolific of all the
implicated chatrooms on the Bloomberg platform which had between 10 and
15 members from 10 or more different banks.
2. The ZAR chatroom which had 3 and later 4 members from 4 different banks
[76] These two chatrooms were employed by multiple traders from multiple
competing banks which, in the view of the Commission, was the site of engagement
and conduct implementing the terms and furthering the objectives of the SOC.
[77] Much of the evidence which was placed before the Tribunal was designed to
show the conduct of various members of one or both of these chatrooms. The
36
relationship between traders who participated in these chatrooms was summarized by
the Commission in the following diagram, presented to the Tribunal:
[78] This diagram seeks to highlight the links between various traders and various
states and the respective respondent banks. The essential case therefore brought by
the Commission in its referral affidavit is that there was sufficient connection between
traders employed by the respondent banks through these chatrooms which provides
sufficient evidence for each of the bank’s conduct fell within the scope of a single
overarching conspiracy.
The question of personal and subject matter jurisdiction
[79] Before dealing with the role of each of these banks and whether the
Commission made out a sufficient case for each of these banks to be referred to the
Tribunal, it is necessary, albeit briefly, to again emphasize the question of subject
matter and persona l jurisdiction. These requirements lay at the heart of the earlier
litigation which culminated in the 2020 order this Court.
[80] Section 3 (1) of the Act which provides that the Act applies to all economic
activity within or having an effect within the Republic sets out the terms of subject
matter jurisdiction. It was described by this Court in American Soda Ash Corporation
CHC Global (Pty) v Competition Commission of South Africa and others [2003]
ZACAC 6 at para 18 as follows:
‘The question is not whether the consequences of the conduct is criminal or, for that
matter anti -competitive, but whether the conduct complained of has, direct and
foreseeable’ substantial consequences within the regulating country. In other words
‘the effects’ in the present case must be such that they fall within the regulatory
framework of the Act whether they are uncompetitive or not.’
39
[81] In the 2020 judgment of this Court it stipulated that the Commission set out the
facts that the Commission relies on to allege that it was foreseeable that the impugned
conduct would have a direct or immediate or substantial effect in the Republic.
[82] The referral affidavit seeks to describe the manner in which the Commission
establishes subject matter jurisdiction thus:
‘The conspiracy had a direct or immediate and substantial effect in the Republic and it
was foreseeable that impugned conduct would, or had the potential, to have such an
effect.
The common manner in which the effect of the impugned conduct are felt is that the
buyers of ZAR pay artificially inflated prices for buying the currency and sell at
artificially reduced prices when selling the currency.’
[83] So much for subject matter jurisdiction. In respect of personal jurisdiction as it
pertained to peregrini banks, the Court in its 2020 decision said the following as it was
applicable to peregrini banks.
‘Given the very objective of the cartelists was to manipulate the USD/ZAR exchange
rate so that they could make a higher profit, common sense and logic tell us that it
would be foreseeable that customers would suffer as a result, either directly as
investors in a given transaction or in the prices of goods and services for export and
import purposes.’
[84] Ultimately the Tribunal came to the conclusion that for the establishment of
personal jurisdiction had been established for ‘at this stage … the inquiry into jurisdiction
requires the Tribunal to decide whether its forum is appropriate and convenient to adjudicate
on the alleged conduct of the foreign Respondents’.
40
[85] That, in turn, requires an examination as to whether there was an SOC between
the respondent banks of a kind that reveals not simply that the Rand was the subject
of the trades but that the conspiracy was sufficiently connected to South Africa
because by v irtue of it being an overall conspiracy, foreign banks had effectively
entered into “business with South African banks”. This provided sufficient connection
between these respondent banks and South African jurisdiction to sustain a finding of
personal ju risdiction in the circumstances of the case. This concept of personal
jurisdiction as developed by this Court was predicated on an economy where business
is no longer based on bricks and mortar but rather on modern technology which has
created the conditions for a global economy where national borders are transcended
by virtue of technological development. It follows that to sustain an argument that
there was sufficient connecting factors the need is to provide clear evidence of
linkages to the South Afri can banks as part of an overall conspiracy and which thus
linked the incolae banks with the peregrini banks.
[86] With these considerations in mind I can now turn to the case brought against
the individual respondent banks. I deal first with the pure peregrini banks in which
both personal and subject matter jurisdiction are required.
Bank of America
[87] It is common cause that the first respondent (BAMLI) is a peregrinus. The link
that the Commission alleges it can show between BAMLI and the alleged conspiracy
is that ‘at certain material times from at least 1 October 2007 the first and / or twentieth
and / or twenty first respondents were represented inter alia, by Gav in Cook acting
within the course of his employment. At certain material times from at least 1 October
41
2007, the first and/or twentieth and/or twenty first respondents were also represented
inter alia by Mark Sheppard acting within the course of his employment. Furthermore,
the first, twentieth and twenty first respondents (Bana) and twentieth respondent
(Merrill Lynch Pierce Fenner and Smith Inc) are members of the same group of
companies and are therefore directly or indirectly linked to one another. Hence the
allegation that the Bank of America group was represented by Cook and Sheppard is
the critical component of the Commission’s case in respect of jurisdiction.
[88] The difficulty for the Commission is that it had been informed on oath in an
exception affidavit generated by BAMLI, that Cook was at all material times employed
by MLPFS, a fact never denied by the Commission.
[89] It may well be that as a result thereof the Commission has sought to join MLPFS
on the basis that Cook was employed by the latter company. Insofar as Sheppard
was concerned, while he is mentioned as a representative of either MLPFS, BAMLI or
BANA, there is no evidence which was provided by the Commission that Sheppard
participated in a single example of discussion in the implicated chatroom which was
the key evidence for the prima facie case justifying the conclusion that there was an
SOC. At the very least therefore the Commission has not shown the facts which are
necessary to justify the conclusion that there was a connecting factor to the extent that
BAMLI participated in the conspiracy together with South African respondent banks to
manipulate the currency exchange between the USD and ZAR.
[90] In this connection it is again important to emphasize the order of this Court in
2020 which required the Commission for the purpose of pleading a SOC to specify the
bank on behalf of which it alleges each trader acted, whether the alleged trader had
42
acted for more than one respondent at a time, whether a trader ceased to act for a
respondent bank and that when did a respondent’s participation end or on what basis
the participation might have continued. The Commission alleges that Cook and
Sheppard ‘were employed and/or representing Merrill Lynch alternatively Bank of
America and authorized by Merrill Lynch alternatively Bank of America to trade in the
USD/ZAR currency pair on its behalf. This is devoid of the kind of specificity which
was required by the 2020 order or by a referral that could pass legal muster.
[91] BANA, by contrast, is a local peregrinus with a representative office in South
Africa. Accordingly, personal jurisdiction is therefore not an issue in this case. The
Commission’s justification for joining all three of these companies of the Bank of
America Group, rested on Mr Cook having an email address “g[...] @BAI.com or
g[...]@ml.com“. But on its own this did not provide a basis to join Bana.
[92] As set out earlier in this judgment there is no plausible basis on which a holding
company such as Bana could have been joined. The creative conclusion generated
by the Tribunal on its own was that s 59 (3) A of the Act could apply, namely, the
holding company could be held jointly and severally liable for the action for the
subsidiaries. To reiterate s 59 (3) (A)of the Act did not apply retrospectively and,
besides, the Commission had not relied upon this section in the complaint referral or
its joinder application.
[93] MLPFS is a pure peregrinus. Accordingly, even accepting that Cook and
Shepard were employees of MLPFS, there was no evidence linking MLPFS to a South
African bank, and none of Cook’s chats were linked to a South African bank, save for
43
one reference to a decision with Katz about the trading position in the Johannesburg
office. As to Shephard, there is no evidence meaningfully linked him to the SOC. On
balance, given that MLPFS is a pure peregrinus, there are insufficient connecting
factors to South Africa to justify personal (as opposed to subject matter) jurisdiction.
Australia and New Zealand Banking Group Limited (the fifth respondent)
[94] It is common cause that the fifth respondent is a peregrinus. For this reason,
both personal and subject matters jurisdiction must be shown to exist. In evaluating
the case against the fifth respondent it is again important to emphasize that the
Commission alleges that ‘from September 2007 until at least Septembe r 2013’ the
respondents reached an agreement and/or coordinated activities to participate in a
single overarching conspiracy with a single anti -competitive object, being the
manipulation and distortion of normal competitive conditions in the trading of
USD/ZAR pair.’ In respect of the fifth respondent the Commission identifies Jason
Katz as the trader employed by the fifth respondent from 2013 as well as a Mr Tezel.
[95] There is no doubt that Katz is a central player in the case brought by the
Commission. The difficulty however is that every instance of participation in the
impugned conduct alleged to have been carried on by Mr Katz predates 2013, the year
in which he joined fifth respondent from another bank.
[96] The only reference to Tezel in the referral affidavit is the following:
‘On 18 October 2012 Katz, Aiyer, Williams and Cummins were participants in an
implicated chatroom in which the following communication took place: Katz and Aiyer
matched each other’s opposite FIX positions in order to off -set their respective
44
exposure at the upcoming FIX. Aiyer “copied and pasted” a portion of a communication
between Madras and Tezel from another chatroom.’
[97] What precisely is meant by ‘copied and pasted’ is not made clear nor is there
any suggestion that Mr Tezel participated in a chatroom or any similar discussion with
other traders. But the Commission’s case relating to Katz concerns the period of 2
October 2007 to 18 October 2012; that is before he joined fifth respondent and that no
participation on the part of Mr Tezel, whether active of passive, is shown in respect of
any of the chatrooms. This justifies the conclusion that no case was made out
sufficient to find that fifth respondent was a participant in the overall SOC as pleaded
by the Commission.
[98] At this stage it is important to note that Mr Katz pleaded guilty to charges
brought by the US Department of Justice arising from a global investigation into the
manipulation of foreign exchange prices at major banks. In his case it appears that
the conspiracy to fix prices in currencies ranged from countries in Central, Eastern
Europe, the Middle East and Africa, including Southern Africa.
[99] Given that the Commission would have had access to the case brought against
Katz, one would have expected that it possessed evidence about Katz and his role. It
could reasonably have been expected that, were their evidence to the effect that fifth
respondent exploited Katz’s knowledge of manipulation of the Rand, this would have
been produced in the referral affidavit. There was simply no such mention. The
basis of the referral affidavit provides no case of personal jurisdiction having been
45
made out. It is thus not necessary to examine the arguments relating to subject matter
jurisdiction against the fifth respondent.
The ninth respondent Nomura International PLC
[100] The ninth respondent is a pure peregrinus. The case against the ninth
respondent is based on the identification of Mr Guido Arlan and Mr Darren Dempsey
as the two traders employed or representing ninth respondent in the trading of the
USD/ZAR currency pair. The Commission alleges that the ninth respondent joined
the conspiracy by at least 18 October 2012 when their employee and/or representative
Dempsey was a participant in an implicated chatroom. It is on this dat e that the
Commission alleges that Mr Dempsey and Mr Howes of ABSA were participants in an
implicated chatroom in which they discussed the bid-office spread for USD/ZAR. The
referral affidavit refers to a chat on 27 May 2010 on the Reuters Trading platfor m.
Where the ninth respondent together with other banks held the USD/ZAR around the
focal point of 7.5760’.
[101] On 2 March 2012 Mr Arlan was a participant together with traders in an
implicated chatrooms where information was shared about custom quotes. A similar
allegation was made in respect of the discussion on the Reuters Trading Platform in
which ninth respondent together with other banks including ABSA held the USD/ZAR
around the circle point of 7.5760.
[102] The difficulty confronting the Commission with regard to ninth respondent and
its alleged participation is that the entire case of participation in the alleged SOC
reduced to unrelated online chats over a course of six -year period. Tellingly two of
46
these chats occurred before the Commission alleges that ninth respondent joined the
SOC.
[103] The Tribunal also found that Demsey on 17 October 2012 was a participant
with Howes in a chatroom where they discussed ‘bid offer spread for USD/ZAR’.
[104] Unfortunately, the Tribunal referred to the single interaction as ‘chats’. (para
318). That however was the only relevance to Dempsey. This one reference to
Dempsey on its own is so skeletal and vague. It is hardly the evidence needed to
sustain a case of personal jurisdiction.
[105] Hence the case brought against the ninth respondent luminously reveals the
difficulty of the ambitious case that the Commission sought to bring to satisfy the
requirements of SOC. It had to establish in this case that ninth respondent knew or
ought to have known its participation in the alleged conduct formed part of an overall
plan to develop and implement the SOC. It was aware or ought to have been aware
of the essential features of the SOC and intended to contribute to achieving that overall
common objective of SOC or alternatively could reasonably foresee that its conduct
contribute to the pursuit of the common objective.
[106] To return to the requirement to prove an SOC: In HSBC Holding Plc and others
v European Commission T105/17 (24 September 2019 at para 199 the following
important passage relating to a SOC appears:
‘The undertaking may have participated directly in only some of the forms of
anticompetitive conduct comprising the single and continuous infringement, but have
been aware of all the other unlawful conduct planned or put into effect by the other
47
participants in the cartel in pursuit of the same objectives, or could reasonably have
foreseen that conduct and have been prepared to take the risk. In such cases, the
Commission is also entitled to attribute liability to that undertaking in relation to all the
forms of anticompetitive conduct comprising such an infringement and, accordingly, in
relation to the infringement as a whole.’
[107] That the Tribunal in upholding the Commission’s case against ninth respondent
failed to take account of the fact that two of the three material averments against ninth
respondent predated the very date upon which the Commission alleged ninth
respondent joi ned the SOC is regrettable. That it then failed to consider that the
implication of the remaining allegation as sufficient to establish personal jurisdiction is
equally unfortunate.
[108] In summary, the three instances cited are insufficient to meet the requirements
of a SOC. This is abundantly clear from the paucity of information provided in the
referral affidavit to provide of the necessary evidence to meet the three requirements
to establish that the ninth respondent was a participant which had a com mon anti
competitive objective, that there was international conduct which contributed to the
SOC and the requisite knowledge of the SOC. That Dempsey is mentioned with
Howes, who provided the Commission with information meant that should there have
been evidence which linked ninth respondent to the South African based SOC, it would
have found its way into the referral affidavit. The silence is instructive.
Commerz Bank
[109] The central finding of the Tribunal against Commerz Bank was:
48
‘The Commission’s finding against Commerz Bank is that Dousie and Wilson were
employed by and/or represented, Commerz Bank and Dousie was participant in an
implicated chatroom.’
[110] The only information which the Commission sets out in its referral affidavit
against Commerz Bank is that Mr Dousie is said to have ‘shared information with Katz
about a potential customer in the market when Katz represented Barclays Capital.
This was on 28 July 2010. On 29 July 2012 it was alleged that it initiated a so -called
focal point; that is a level of the spot rate at which coordination takes place.
Furthermore, it was said to have occurred on the Reuters trading platform.
[111] There is a further averment that on 20 September 2012 that Commerz Bank
matched the average of Investec Bank at a price of 8.3277.
[112] Bearing in mind that the Commission is taken to have the evidence of Mr Katz
from his DOJ hearing it is significant that the affidavit does not contain any details of
the information about the potential customer which was shared. It does not suggest
that Commerz Bank was acting in concert with any of the other banks including
Barclays, nor does it aver that the information that was shared was commercially
sensitive.
[113] In this connection the use of the Reuters information platform becomes
relevant. It was explained by Mr Ian Sinton in an affidavit to which he deposed on
behalf of the eighth respondent. In evidence which was never contradicted he said:
‘The Reuters information platform that is primarily a news outlet akin to Bloomberg
where trades are not executed but indicative exchange rates are posted by many
institutions in order to show those who have access to the platform the trends in the
49
market. The indicative exchange rates are typically submitted by the market
participants to Reuters by way of an automated feed that may update many times in
an hour. It is not a trading platform and the indicative rates published by Reuters are
neither binding nor used to determine the applicable rate in actual trades.
The Commission (i) identifies which bank allegedly posted the quotes; (ii) is not able
to name the traders that engaged in the conduct (save for an incorrect reference to
Brownrigg to which I return later); (iii) does not attribute any value or volume to t he
quotes; (iv) alleges that almost all of the quotes relied upon were posted at times when
SBSA would not have been posting quotes that could give rise to a trade; and (v) does
not allege that any quote posted was accepted. Without access to data sets, the only
reasonable inference that SBSA is able to draw is that the Commission’s reference to
‘market conduct on Reuters trading platform’ refer to automated indicative exchange
rates posted on the Reuters information platform.’
[114] It is significant that in the case of Commerz Bank the Commission pleaded that
only it (Commerz Bank) initiated a focal point. This stands in contrast to the numerous
allegations of focal point which involved the conduct of multiple banks. An allegation
of unilateral conduct without more is hardly evidence of participation in an SOC.
[115] In summary, given the manner in which the Commission pleaded this case,
namely that there was a SOC, there is insufficient evidence to show that Commerz
Bank was a participant in an overall plan pursuing a common economic objective, that
its intentional contribution on its own which conduct indicates such participation and
that it was either aware of the overall conduct planned in respect of the SOC as a
whole or could reasonably have foreseen the existence of a SOC and that it was
prepared to take the risk.
50
[116] At best for the Commission there may have been an explanation to which
Commerz Bank was obliged to provide that there was nothing untoward in two traders
from competing banks sharing information about a potential customer. But on its own
this is insuffici ent to meet the requirements of the case that was brought by the
Commission, that is the ambitious case of a SOC in which all of the respondent banks
participated.
[117] To the extent that there would be doubt in relation to the Commerz Bank, or for
that matter Nomura, reference should be made again to the provisions of Tribunal
Rule 15 (2) to the effect that the Commission is required to set out a concise statement
of the grounds of a complaint which contains the material facts or the points of law
relevant to the complaint relied on by the Commission in respect of the allegations that
demonstrate that a party was in breach of a provision of the Act; in this case s4(1) (b)
of the Act..
[118] The complaint had to be pleaded with sufficient factual particularity to enable a
respondent to ascertain the case that it is required to meet; in this case that it
participated in a SOC and that its conduct met, at least prima facie, all of the
requirements necessary to show that it was a participant in the alleged SOC. It is this
set of requirements which are a bridge too far for the Commission in regard to these
respondent banks; a burden made significantly more onerous by virtue of the
Commission’s entire case being based on the existence of a SOC. And further that
personal jurisdiction had to be established.
51
Macquarie Bank Limited (thirteenth respondent)
[119] Macquarie is a peregrinus bank. There is but one paragraph which alleges that
Macquarie was part of the SOC. In paragraph 116 of the referral affidavit the following
was alleged:
‘On 11 September 2013 Chia, Kunene, Murray, Atkins, Harkins, Donnely, Fryday,
Bhana and Naidoo were participants in an implicated chatroom which Chia and
Kunene discussed bid offer spread for the USD/ZAR (sic). Murray shared
competitively sensitive information.’
[120] It was stated that Chia, Murray, Atkins, Harkins, Donelly and Fryday were
representatives of Macquarie. It means that the only other persons implicated in this
chatroom were Kunene, Barna and Naidoo. The Commission alleges that Kunene
represented Absa Bank Limited but makes no further reference to Barna and Naidoo.
[121] On its own, at best for the Commission this would establish a prohibited
practice between Macquarie and Absa involving a single instance of information
sharing on a single day, namely 11 September 2013. Such a case could have been
brought but it was no t. Counsel for the Commission sought to salvage this aspect of
the Commission’s case by saying that anyone who became a participant in any
chatroom or on the Bloomberg terminal somehow would know or should reasonably
have known the chatroom was used as a p rimary mode of communication to
implement the terms and further the objectives of the SOC. Thus, it would have known
through access to the chatroom that even a participant in but one chat would know of
the other conduct alleged or planned to be put into effect by the remaining participants
in the SOC.
52
[122] The difficulty is that there is nothing in the referral affidavit from which these
conclusions can be inferred. In effect, the only evidence available was from the Bar
which was insufficient, nor did the referral, as indicated earlier in this judgment,
distinguish between information in relation to currency trading which is in the public
domain and that which was privy to the participants in the SOC. It is difficult to see
how a case can be made out that a respondent bank participated in the overall SOC
as pleaded on the basis of a single chatroom with a member of Absa. What
compounds the difficulty is that Mr Howes of Absa provided detailed information to the
Commission, pursuant to the leniency application which had been successfully made
by Absa. One would have expected the Commission to specify information Macquarie
might have acquired or shared in its engagement on a single occasion with Absa. It
is simply insufficient for the referral affidavit to refer blandly to ‘other instances of
conduct’ to i mplement the SOC without any specification thereof. Most certainly no
instances of other conduct by Macquarie are alleged to have taken place.
[123] It is also significant that the Commission’s case was based on argument that it
was foreseeable that the SOC would have the requisite effect in South Africa in respect
of subject matter jurisdiction by peregrini banks. There was not a single reference to
Macquarie in this regard. Even leaving aside this problem of subject matter
jurisdiction, there is simply insufficient evidence to connect Macquarie to the overall
SOC which was an essential requirement of the 2020 order of this Court to establish
personal jurisdiction.
53
JP Morgan Chase (the third and fourth respondents)
[124] Significantly, these parties did not appeal the finding that the Tribunal had
personal jurisdiction over this case. The case against these respondents was
therefore based on the failure to establish subject matter jurisdiction on the part of the
Commission. The case of fourth respondent was that the Commission was required
to plead facts to establish that the cause of action, being a participant in the SOC, was
based on business carried on by fourth respondent’s Johannesburg branch or that the
collusive conduct was attributable to its appointment as an authorized dealer in South
Africa.
[125] In relation to the fourth respondent, the Commission pleaded that Mr Akshay
Aiyer and Mr Paul Simister were the two individuals whose conduct was evidence of
participation by the fourth respondent in the SOC. However, at no point is there any
allegations that either Mr Aiyer or Mr Simister worked for the fourth respondent’s South
African branch and exercised the powers of an authorized dealer within South Africa.
Nor is there any eviden ce which attribute their conduct to the fourth respondent in
respect of participation in the SOC. In summary, the Commission did not plead facts
to establish that the cause of action arose out of a business carried on with the fourth
respondent’s Johannesburg branch or that the collusive conduct was attributable to its
appointments and authorized deal in South Africa.
[126] By contrast to establish jurisdiction over the third respondent a peregrinus there
is a need to plead facts which illustrate both the existence of personal and subject
matter jurisdiction.
54
[127] It is clear that Mr Aiyer and Mr Simister were employed by third respondent. Mr
Aiyer was convicted in the US District Court for the Southern District of New York for
conspiring to fix prices and rig business in Central and Eastern European, Middle
Eastern and African currencies. Thus, the Commission should have had significant
information about his participation in the SOC. Nonetheless, there was a plethora of
evidence provided in the referral affidavit about the participation; particularly of Aiyer
in various chatrooms particularly in the ZAR chatroom. It is so that a number of these
engagements were with traders who were employed by peregrinus banks. For
example on 10 April 2012 Aiyer participated with Mr Duncan Howes of Absa in an
implicated chatroom during which he was provided with information by Howes on a
proposed bid spread. There is a further reference to a chat on 10 April 2012, where
Howes and Aiyer discussed bid offer spreads. There are also references to
participation with a key figure i n the entire chain of events, being Mr Jason Katz in
particular on March 2012.
[128] The regularity in which Mr Aiyer participated in implicated chatrooms (albeit that
Mr Simister does not appear to have been referred to on more than one occasion)
provides, at least, a prima facie basis for the justification that through the role in
particular of Aiyer, the third respondent participated in the SOC as pleaded and that it
has a case, at least to answer. The same however cannot be said of fourth
respondent.
55
HSBC Bank PLC (fourteenth respondent) and HSBC USA National Association Inc
(nineteenth respondent)
[129] The nineteenth respondent is a pure peregrinus such that both personal and
subject matter jurisdiction are required. By contrast, the fourteenth respondent is a
local peregrinus; hence only subject matter jurisdiction is required.
[130] The referral affidavit, to a considerable extent, conflates the cases against the
fourteenth and nineteenth respondents. It alleges that there is intertwined conduct
between the two respondents. Hence the difficulty in analyzing the Commissions
case against these respondents is the lack of any separation between conduct alleged
to have been implemented by the fourteenth respondent as opposed to the nineteenth
respondent.
[131] The key to the Commission’s case, read as coherently as possible involves Mr
Hatton, who the referral affidavit states was employed by the nineteenth respondent
from 1 September 2005 to 30 October 2010. The referral affidavit implicates Mr
Hatton in 28 of 160 instances of conduct described as constituting the existence of the
SOC which includes six peregrini banks. To the extent that a South African bank is
alleged to have been involved in any dealing with the nineteenth respondent there are
three instances on 27 May 2010, 19 September 2012 and 20 September 2012.
However, in none of these cases was any em ployee or representative of the
nineteenth respondent named as having been involved.
[132] In none of these instances has the Commission even identified a single
employee or representative of any of the South African banks, (Absa, FirstRand,
56
Standard Bank, Investec) with whom the nineteenth respondent could have agreed to
have participated in the overall SOC.
[133] In terms of the referral affidavit Mr Hatton ceased to be employed by the
nineteenth respondent as at 30 October 2010. The other employer of the nineteenth
respondent, Mr Mirkovic, was not alleged to have been an active or passive participant
in any of the conduct implementing the conspiracy. In the only instances in which Mr
Mirkovic was mentioned, his involvement was peripheral and hardly takes the
Commission’s case any further. Even the fact that Mr Hatton was employed in
events that occurred afte r October 2010 insofar as the nineteenth respondent is
concerned can be discounted. In summary, Hatton is implicated in exchanges with
six banks, none of which was a South African bank. Unlike the case against fourth
respondent, the Commission has fa iled insofar as the nineteenth respondent is
concerned to link it to any South African Bank.
[134] To emphasize again, to establish personal jurisdiction the Commission had to
show that all of the respondent banks had reached an agreement and/or coordinated
the activities to participate in the SOC and that there was sufficient South African
involvement so as to justify a finding of personal jurisdiction as opposed to subject
matter jurisdiction.
[135] Turning to the fourteenth respondent, it is a local peregrini and only subject
matter jurisdiction is required. Mr Hatton was a regular participant in the chatroom.
Counsel for the fourteenth respondent conceding that he was implicated on 28
occasions. While counsel argued that this amounted to 28 out of 160 ins tances. It
remains however evidence of regular interaction. There are 31 references to Mr
57
Hatton in the referral affidavit from 2007 to 2010, that is prior to his termination of
employment with these two respondents. It is possible that there were only 28 events
in which he participated but there can be no doubt that for the period 2007-2010 there
is clear prima facie evidence of participation in the SOC as a result of Hatton’s conduct.
While nineteenth respondent admits that Hatton was its employee, the allegations of
participation in trading as contained in the referral affidavit entitles the drawing of an
inference that fourteenth respond has been correctly connected to the SOC. Of
further significance is the affidavit deposed to by Mr Altini on behalf of both these
respondents; in particular the conflation in this affidavit of the respective activities of
these two respondents. There is no clear denial that Mr Hatton had nothing to do with
the activities of fourteenth respondent. Given the extent of Hatton’s role and that only
subject matter jurisdiction is required fourteenth respondent has a case to answer.
The Credit Suisse Group and Credit Suisse Securities (USA) LLC (eleventh and
twenty third respondents)
[136] The complaint referral against CSG has already been analysed. It was a
holding company. It did not trade for its own account. It had not been licensed to
conduct a foreign exchange trading business. It did not employ nor was it represented
by employees alleged to have participated in the alleged contravention on its behalf.
It was thus improperly included in the referral.
[137] In the case of CSS the complaint sets out participation in the implicated
chatroom by two individuals Mr Hatton and Mr Putter. The Commission alleges that
eight chats involving these employees took place between November 2010 and May
2011. There is one r eference to Putter who was a member of a separate chat with
58
Katz where it was alleged that they exchanged commercially sensitive information and
shared information on bid offer spreads. By contrast, Hatton was a particularly active
member of the Old Gits chatroom, the longest running and most prolific of all the
implicated chatrooms on the Bloomberg Platform. Hatton had significant
communication with the key player in the chatroom, being Katz.
[138] CSS’ counsel submitted that in the case of CSS, the Commission’s case
illustrates that it was predominantly in communication with peregrini banks, being the
Bank of America, Citibank, Standard Chartered and Merril Lynch. However Barclays
Capital was also in the Old Gits chatroom. The evidence suggests that the
representative of Barclays (the seventeenth respondent which applied for lenien cy)
and Citibank which conducts the business of a bank in South Africa through a branch
and which reached an agreement with the Commission confirmed in an order of 26
April 2017 were also present in the chatroom. Standard Chartered also reached an
agreement with the Commission. It too had an office in South Africa.
[139] For these reasons it is incorrect to suggest that the case brought against CSS
was that it was party to chats in the chatroom, only with “American Banks”. In addition,
CSS is a local peregrinus and only subject matter jurisdiction is required in this case .
Much was made by CSS’ counsel of non -compliance with the 2020 order in that her
client could not investigate whether the complaint was time barred or could plead a
time bar defense on the basis that the Commission had not provided a date on which
the SOC ended or particularly at what point the CSS ceased participation in the SOC.
However in substance, the referral affidavit in this case, prima facie, implicates CSS.
The intensity of Hatton’s involvement in chatroom exchanges of information on behalf
59
of a local peregrinus justifies the conclusion that CSS has a case to answer on the
basis of the referral affidavit.
Standard New York Securities Inc (SNYS) (sixth respondent); Standard Americas Inc
(twenty eighth respondent)
[140] SNYS has been dealt with earlier but because of the link to the twenty -eighth
respondent the background to this referral reasons of considerable significance. On
15 February 2017 when the Commission initially referred its complaint referral to the
Tribunal, it included SNYS (the sixth respondent) but it did not cite the twenty eighth
respondent in the initiation statement, its amendment or the complaint referral.
[141] In March 2017 attorneys representing SNYS informed the Commission that
traders alleged to have acted on its behalf were not employed by it but rather by the
twenty eighth respondent. For reasons which are unexplained, the Commission
ignored all this information for more than three years, notwithstanding the various
supplementary affidavits that it filed during this period. Only on 1 June 2020, when it
sought to respond to the order of this Court by filing a replacement to the referral
affidavit, did it include the twenty eighth respondent. It continued to include the sixth
respondent in its referral affidavit.
[142] The problem for the Commission is that SNYS never engaged in forex trading,
a point it made repeatedly to the Commission. In addition, SNYS is a peregrinus and
no evidence connecting it to the SOC was adequately pleaded. It is simply insufficient
to simply state as the Commission had done that SNYS was relevant as a respondent
in that:
60
‘[i]n the context of an alleged cartel and in the absence of viva voce evidence, we
would be reluctant at this early stage of the proceedings to dismiss the Referral against
a particular respondent.’
[143] It is this regrettable failure which is fatal to the case that it brought against the
twenty eighth respondent. For reasons already set out in this judgment it is clear that
the intention of the order of this Court of 2020 was not to bring additional parties before
the Tribunal but to reconfigure the hopelessly inadequate referral affidavit which had
been the subject of the earlier proceedings. It did not entitle the Commission to
include further parties into a case effectively notwithstanding the need to recraft an
inadequate referral affidavit.
[144] In the case of the twenty eighth respondent the Tribunal again sought to come
to the assistance of the Commission by reference to the judgment of Competition
Commission v Yara (South Africa) (Pty) Ltd and others 2013 (6) SA 404 (SCA) and
the Competition Commission v Pickfords Removals SA (Pty) Ltd 2020 (10) BCLR 1204
(CC). These judgments held that an initiation is targeted against conduct not particular
parties and further it is permissible to add a respondent to a complaint initiated at an
earlier stage. The Tribunal adopted the view that joining the twenty eighth respondent
in June 2020 for the first time would not prejudice it because the matter had not
progressed past the pleading stage. Leaving aside the regrettable elision of the
Tribunal over the legal significance of the 2020 order, as the Supreme Court of Appeal
stated in Yara at para 29:
‘Absent any evidence of an express – albeit informal – initiation the question will be
whether a tacit initiation had been established. That will be a matter of inference which
61
depends on the inquiry whether or not it is the most probable conclusion from all of the
facts, the Commission had decided to initiate the additional complaint.’
[145] On the facts of the case against the twenty eighth respondent, it is difficult to
see how tacit initiation was established. The twenty eighth respondent was not a
respondent when the complaint was first initiated in April 2015. It was not the subject
of investigation by the Commission at the date of filing of its amended form CC1, nor
in the initiation statement in August 2016, nor was it the subject of investigation at the
date of referral.
[146] On the Commission’s own version it was only when it prepared its amended
referral on 1 June 2020 that the Commission considered including the twenty eighth
respondent in its referral. This was not the kind of case where the Commission could
have argued that as the cartel operated in secret it had difficulty in detection because
it had obtained clear information as at 1 April 2015 which, had it wished, it could have
also included the twenty eighth respondent. It failed to act prudently. There was, in
short, no basis for the Tribunal to have upheld the Commission’s application to join
Standard America as twenty eighth respondent in the complaint referral.
BNP Paribas (second respondent)
[147] The second respondent is a local peregrinus and accordingly only subject
matter jurisdiction needs to be established. According to the Tribunal second
respondent sought an order directing the Commission to amend or supplement its
referral affidavits, arguing that no cause of action was disclosed, that the alternative
referral affidavit was vague and embarrassing due to the Commission not specifying
62
the end date of the SOC or whether each respondent remained as participants or had
exited the SOC. It argued that if it exited from the SOC, there was no indication that
it had done so. The essential argument before the Tribunal was that the allegations
that have been brought against it were vague and embarrassing on the basis that there
was no indication as to when a SOC ended, there was no specification of the period
in which the second respondent’s participation had began and ended. It was thus
embarrassed in pleading to these allegations.
[148] By contrast to a number of respondent banks, second respondent chose not to
expressly raise the question of subject matter jurisdiction. On the basis of the law,
even as set out in TWK, the question of appealability in relation to jurisdiction is clearly
not constrained by the dismissal of an exception. But on the basis of TWK, this is not
the case with regard to the bringing of an exception based on vague and embarrassing
pleadings. To that extent, a point never addressed by counsel for the second
respondent concerned a reliance on whether it is in the interests of justice to allow an
appeal in the case, against his client.
[149] As indicated, in the judgment of the Constitutional Court in UDM and others v
Lubashe Investment Group (Pty) Ltd and others supra included such a test for
appealability for interim orders, even for courts other than the Constitutional Court.
But is it applicable in this case?
[150] In this case it is clear that second respondent employed Mr Katz from
September 2011 to 2013. Mr Katz was essential to numerous discussions in the
chatroom. As was expressed by a number of counsel during the debate Mr Katz was
the ‘glue’ which bound a number of the other traders together in sharing confidential
63
information about USD/ZAR exchange rate. That in itself places a burden upon
second respondent to explain this conduct over the fairly extended period in which Mr
Katz was employed by it.
[151] Furthermore, second respondent was the only respondent bank which did not
seek dismissal of the case before the Tribunal. It sought that the Tribunal direct the
Commission to amend or supplement its referral affidavit. Its essential argument was
based on the concept of vague and embarrassing pleadings. In my view, given the
role of Katz, the Commission has made out a sufficient case which requires answers
from second respondent. Much was made of the non-compliance with the 2020 order,
particularly, regarding the question as to when the SOC ended. Since the averment
is that the SOC ended in 2013 and that Mr Katz was employed until that date, there is
very little merit insofar as second respondent’s argument that it was adversely affected
by the alleged non-compliance with the 2020 order.
FirstRand Bank (twenty seventh respondent)
[152] FirstRand Bank was not cited as a respondent in the original complaint referral.
When the Commission delivered its amended referral affidavit in June 2020 it included
it as the twenty seventh respondent and alleged that it also engaged in conduct
prohibited in terms of s 4 (1) (b) of the Act as a participant in the single overarching
conspiracy.
[153] In contrast to the case brought against many respondent banks, the
Commission did not provide any example in its referral affidavit of the twenty seventh
respondent’s traders engaging in contact in the chatrooms with other banks which
were exchanging infor mation or reaching agreement. Indeed in paragraph 65.20 of
64
the referral affidavit, the Commission accepts that it does not even know who the
FirstRand Bank’s traders were and has no evidence that they had participated in any
chats on the Bloomberg chatroom at all.
[154] Its case against FirstRand was based on “trading data on the Reuters platform”.
In short, its case is based on a platform that certain market conduct by FirstRand Bank
with other respondent banks took place from particular dates and that the posting of
quotations on the Reuters trading platform was coordinated to amount to the
manipulation of the currency.
[155] An example of its case against FirstRand Bank is the following: the Commission
alleges that on Sunday 11 January 2009 between 22h59:07 and 23h48:23, following
the allegation that ‘Standard Securities alternatively Standard Americas Inc and UBS
quoted the same ask and bid price.’ RMB and Nedbank thereafter quoted identical
bid prices and the ask price only differs by a pip leading to identical spot exchange
rates and spreads.’ Further RMB then matched Standard Securities alternatively
Standard Americas Inc at the bid prices of 9.7600 and the ask price of 9.8599.’
[156] Similar allegations were raised against FirstRand Bank on 28 May 2010, 7
March 2012, 20 September 2012, 28 September 2012, 21 October 2012.
[157] It is regrettable that the Tribunal’s decision against FirstRand Bank was justified
on hopelessly incorrect information. For example, in finding that the express
allegations in the 2020 June affidavit were that FirstRand Bank had traded through the
chatrooms (a point never made in the referral affidavit) the Tribunal referred to a series
of footnotes in the referral affidavit (footnote 159 and 160 of its decision to paragraphs
65
144,145 and 197 of the referral affidavit) as being the source of this finding. Even a
cursory reading of these paragraphs reveals that the traders who are mentioned being
Katz, Williams, Aiyer, Cummins, Mullaney and McInerney none of whom were ever
employed by FirstRand Bank at any stage.
[158] Contrary to the Commission’s counsel’s attempt to exonerate the Tribunal’s
unfortunate error, that this was merely “a typographical error” it is not possible to find
any paragraph, other than the one cited, inaccurate which could sustain the conclusion
to which the Tribunal arrived.
[159] Much was made in the referral affidavit and by the Commission’s counsel of
consistent prices being observed across time and banks. A fundamental problem with
this submission and which percolates itself throughout the referral affidavit is the
inability to distinguish between information which is in the public domain; that is
information available to all banks who simply have access to Reuters or a similar
screen available to all banks and information that could only be the product of some
form of nefarious cartel activity.
[160] At the very least the referral affidavit should have made this distinction patently
clear and thus located the case which the Commission had brought against
respondent banks at FirstRand within the latter as opposed to the former category.
[161] There is no case which was made out in the referral affidavit which implicates
FirstRand Bank. Accordingly, the appeal against the decision of the Tribunal to
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include FirstRand Bank in the case brought by the Commission clearly stands to be
set aside.
[162] Turning to FirstRand Limited (the twenty sixth respondent) even the 2020 June
affidavit contains no allegations against it. After the Commission withdrew a complaint
against RMB Holdings Ltd as the twenty sixth respondent, it gave notice that it
intended to amend the citation of twenty sixth respondent to include FirstRand Limited
as a respondent in the complaint referral. Leaving aside the problem that there was
no explanation as to how the allegations which had been made against RMB Holdings
as a subsidiary of FirstRand Bank could simply be made to apply to FirstRand Bank
Limited as the holding company of FirstRand Bank, there was little else to justify this
act. Suffice to say that the joining of holding companies on the basis of s59 (3) A of
the Act is not justifiable for all reasons set out already in this judgment. The Tribunal’s
decision to allow the Commission to join FirstRand Bank as respondent must be set
aside.
Standard Bank of South Africa Limited (the eighth respondent)
[163] In this case the respondent is an incola; thus only subject matter jurisdiction is
relevant. The Commission’s case against Standard Bank was that it joined the SOC
on 1 January 2008 when it together with Absa withheld quotes to enable Nedbank to
fix exchange rate alternatively on 1 October 2012 when its employee and/or
representative Brownrigg was a participant in the implicated chatroom’.
[164] Turning to the allegation that Standard Bank entered the SOC on 1 January
2008 (a public holiday in South Africa but presumably om the Commission’s case
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South African traders was still hard at work) the Commission was not able to refer to
a single contact between Absa, Standard Bank and/or Nedbank, whether before or
after that date. No trader was named who was employed by or who represented
Nedbank.
[165] The first evidence that the Commission had of any contact between an
employer of Standard Bank and a party allegedly employed by another respondent
bank was more than four years later in 2012. Returning to the New Year’s Day
allegation, it is significant that the referral affidavit refers to these banks withholding
quotes to enable Nedbank to fix the exchange rate at 75850. No further details are
provided and one is entitled to speculate reasonably as to whether on New Year’s day
the withholding of quot es meant that, as the South African forex markets had been
closed, the reason for the withholding of quotes may well have been due to the public
holiday rather than to any nefarious activity.
[166] A further point made by counsel for Standard Bank which circles back to an
observation made earlier in this judgment, is the significance of the Reuters
information platform. It is similar to a news outlet in which indicative exchange rates
are typically submitted by market participants by way of an automated feed that may
update many times in an hour. It is not a trading platform and indicative rates
published by Reuters are neither binding nor used to determine the applicable rates
in actual trades. Th is information gleaned from the Reuters platform is hardly
indicative of participation in the SOC.
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[167] The other evidence cited in the referral affidavit which is relevant to Standard
Bank is the following:
‘On 19 September 2012, between 18:57:14 and 02:37:03 UTC and on Reuters trading
platform, Standard Bank, represented by Brownrigg provides an unusually high spread
in the market, in line with a conversation he held on the Bloomberg chatroom with
Taylor. Standard Bank provides bid and ask prices of 8.2096 and 8.2597 creating a
spread of 0.1001. This spread is unusually high, and was in force for quite some time,
so that the chat between Brownrigg and Taylor confirmed what was already long
agreed between the participants of the conspiracy. The spread is unusually high
considering the fact that, although spread depend on market conditions on order sizes,
the data shows that banks normally do not charge a spread that exceeds 0.06. the
spread of 0.1000 is associated with Standards Bank, Absa and Nedbank.’ (referral
affidavit at para 192.11)
[168] Significantly, Brownrigg was not an authorized trader but an institutional sales
person which role it was to solicit offers from other institutions, including South African
and foreign banks, to buy and sell foreign currency from and to Standard Bank in it s
capacity as an authorized dealer. Brownrigg did not represent Standard Bank on the
Reuters trading platform at any time relevant to the complaint. Furthermore, it was
never explained as to whether the communication between Brownrigg and Taylor was
a normal conversation that took place in the ordinary course of Forex dealing between
authorized dealers in South Africa or, alternatively that there was something nefarious
in this particular contact.
[169] According to the evidence provided by Taylor, who was an employee of
Barclays Investment Bank and on whose behalf he contacted Brownrigg, Barclays was
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not a ZAR Bank. That meant that if Taylor wished to buy or sell ZAR he would have
needed to approach a ‘ZAR Bank’ in order to do so, this normally being Absa, because
it was a member of the Barclays group.
[170] All of this evidence was made available to the Commission including the identity
of Taylor’s employer and the nature of his engagement with Brownrigg. The
Commission inexplicably persisted in finding that there was plausible evidence of
Standard Bank’s participation in the SOC, on the basis of this cohort.
[171] The Commission also sought to make much of the role of Messrs. Richard De
Roos and Robert Silverman, who the Commission contended, were employed by or
represented Standard Bank New York alternatively Standard Bank. Significantly when
De Roos and Silverman are cited in the referral affidavit they were cited within the
following context:
‘On 13 April 2011, Katz and Howes were participants in an implicated chatroom in
which the following communication took place: Katz told Howes about how his
contacts at Citibank, Standard Chartered and Standard Securities pulled their offers in
order to allow him to go first and put his offer. I understand that the contacts of Katz
at Standard Securities alternatively Standard Americas included Silverman, de Roos
and Friedman.’
[172] In this passage in the referral affidavit the Commission avers that de Roos and
Silverman were representatives of Standard Securities alternatively Standard
Americas. There is no suggestion of participation or a link in this connection with
Standard Bank South Africa.
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[173] In the case against Standard Bank the skeletal nature of any allegations reveals
that there is no basis by which its activity fell within the scope of subject matter
jurisdiction. To find, as the Tribunal did, that there are disputes that only can be
determined after the benefit of a full hearing bears little relationship to that which is
contained in the referral affid avit. The case does not get out of the legal starting
blocks.
Conclusion
[174] It is important to emphasize the scope of this judgment. It does not, in any way,
sanction cartel conduct. Cartel conduct or behavior is the most egregious form of anti-
competitive behavior. But, on appeal, this Court is obliged to assess whether the
Commission has made out a case in terms of its pleadings which in this case is
contained in the referral affidavit. It should be emphasized that in 2020 a final
opportunity was granted to the Commission to reconfigure the referral affidavit after its
first effort was found to be lamentably inadequate to prosecute a cartel case.
[175] The Commission based its entire case on a SOC in which all of the respondent
banks were said to be participants. As set out in the discussion on the jurisprudence
derived from the European courts and which was the basis of the Commission's own
employment of the concept of a SOC, it was necessary for the Commission to meet
the core requirements thereof.
[176] To repeat, on the Commission’s own version, it was required to show a common
anti-competitive objective, that is an overall plan in which all of the respondent banks
participated to pursue a common economic objective. It was required to show that
each firm had made an intentional contribution by its own conduct to the common
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objectives pursued by all of the participants to the SOC. It further was required to
show that each respondent bank was aware of the actual conduct planned or put into
effect by the other undertakings in pursuit of these objectives; that is to perpetuate a
SOC or that each respondent bank could reasonably have foreseen that it participated
in the SOC and that it was prepared to take the risk. As is evident from 2020 Court
order it behoved the Commission to provide significant further details in the refer ral
affidavit over and above its initiation referral affidavit to show that this overall
conspiracy could be proved to include all the respondent banks.
[177] Compounding the difficulty of this ambitious cause of action as developed by
the Commission was the fact that a number of the banks were peregrini as a result of
which the Commissions was required to make a showing of both personal and subject
matter jurisdiction. As is evident from the 2020 judgment, this Court was prepared to
extend the concept of personal jurisdiction beyond the strictures of th e existing
common law position; that is beyond the requirements of a local presence in South
Africa or a party prepared to consent to jurisdiction. It found that in an appropriate
case personal jurisdiction could be extended if there was a case in which peregrini
were part of a conspiracy in which they participated with South African banks directly
such that peregrini banks could be considered to be participants in the cartel. That
was the very least that was demanded from the 2020 order.
[178] Manifestly, evidence to that effect is designed to meet the requirement of
personal jurisdiction. It is an onerous requirement because by so developing the law,
this Court was prepared to extend the concept of personal jurisdiction to meet the
demands of a global economy in circumstances where this development was suitably
circumscribed by means of the evidence required. In addition, the Commission was
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required to make a showing of subject matter jurisdiction which in essence is
encapsulated in s3 (1) of the Act. The Tribunal, unfortunately, conflated these two
requirements. The Tribunal’s treatment reduced the personal jurisdiction component
to an a lmost meaningless exercise. It is important to distinguish these two
requirements to ensure that both are adequately shown by the Commission in seeking
to hold peregrini banks accountable for their conduct.
[179] It is for this reason that an occasional participation in a chatroom or unspecified
conduct which is tenuously inferred as being part of the overall conspiracy is
insufficient to meet these jurisdictional requirements.
[180] While subject matter jurisdiction is widely couched in the words employed in s
3 (1) the basis of subject matter jurisdiction was set out expressly in the referral
affidavit as follows:
‘The conspiracy had a direct or immediate, and substantial effect in the Republic and
it was foreseeable that the impugned conduct would, or had the potential to, have such
an effect.
The common manner in which the effects of the impugned conduct are felt is that
buyers of ZAR pay artificially inflated prices for buying the currency and sell at
artificially reduced prices when selling the currency.’
[181] It should be noted that the manner in which ‘the effect of the conduct’ is set out
in the referral affidavit has significant implications. As pointed out in argument by
counsel for the third and fourth respondents, between 2007 and 2013, the relevant
period for the case brought about the existence of the SOC, daily trades in the South
African domestic forex market increased from USD10.7b to USD18b. The daily ZAR
foreign exchange on the spot markets amounted to approximately USD 26.28b with
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USD 6.6b daily on the outright forwards market. The largest single transaction
pleaded by the Commission in respect of the alleged SOC was USD 25m.
[182] It may well be that the effect that various trades documented by the
Commission had on the Rand was so insignificant as to have had no material effect
thereon. But that is a matter which is better dealt with at trial where the respondent
banks, which have a case to answer, can provide evidence to gainsay the case made
by out by the Commission.
The finding
[183] In summary this Court has come to the following set of conclusions: A holding
company which is not registered as a bank, not authorized to trade in foreign currency
and whose role is simply shown to be that one of the subsidiaries traded in foreign
currency cannot on this alone be included in the referral affidavit. Accordingly, the
twenty fourth respondent, (Nedbank Group) the twenty sixth respondent, (FirstRand
Limited), the eleventh respondent (Credit Suisse Group), the twenty first respondent,
(BANA), were incorrectly joined in the referral affidavit and their opposition to the
Commission’s attempt to join them in these proceedings must succeed.
[184] The Tribunal’s finding that the referral affidavit which was placed before the
Court when it made its 2020 order could be reconfigured to pass legal muster could
include further banks subsequent to the initial referral to the Tribunal must be set
aside. T hat means that the twenty fifth (Nedbank Ltd), twenty seventh and twenty
eighth respondents (FirstRand Bank Ltd and Standard Americas Inc) which were only
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cited in June 2020 were improperly joined. Their application to set aside the joinder
must succeed.
[185] This Court has emphasized that there are clear separate requirements to
establish personal and subject matter jurisdiction. In the case of the pure peregrini
both requirements must be established in order for the referral to meet the requisite
legal stand ards. It was made clear in the 2020 judgment of this Court that the
Commission was required to allege that there were adequate connecting facts
between the parties and the jurisdiction of the Tribunal sufficient to establish personal
jurisdiction against all of the named respondents. As repeatedly emphasized that is
an onerous requirement. The reference to occasional participation in a chatroom
without any additional evidence and where there was no link to any South African bank
is inadequate to meet t he test as set out in the 2020 order. Accordingly, the
Commission has failed to show the requisite personal jurisdiction in the case of the
fifth respondent, (ANZL) ninth respondent, (Nomura) twelfth respondent, (Commerz
Bank) thirteenth respondent (MaQuire) and nineteenth respondent (HSBUS).
[186] In the case of the sixth respondent it was made clear to the Commission that
none of the alleged traders have been employed by this respondent and accordingly
there was no basis by which it should have been joined to these proceedings.
[187] In the case of the incolae and local peregrini only subject matter jurisdiction was
required. In the case of the fourth respondent (JP Morgan) the Commission has failed
for reasons set out above to meet this requirement.
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[188] In the case of the balance of the respondents, being the second respondent
(BNP Paribas), the third respondent (JP Morgan Chase Bank), the fourteenth
respondent (HSBC Bank PCC) and the twenty third respondent (Credit Suisse
Securities) sufficient facts wer e placed in the referral affidavit to justify the referral
affidavit and the need for the matter to proceed to trial.
Costs
[189] In the Competition Commission v Pioneer Hi-Bred International Inc and others
2014 (2) SA 480 (CC) at para 27 the Constitutional Court held that this Court’s
discretion to award costs in respect of proceedings before it was subject to the
“requirements of the law and fairness”. The Constitutional Court held thus:
‘The principle that should inform the CAC’s discretion is that, when the Commission is
litigating in the course of fulfilling its statutory duties, it is undesirable for it to be
inhibited in the bona fide fulfilment of its mandate by the threat of an adverse c osts
award. This flows from the need to encourage organs of state to make and to stand
by honest and reasonable decisions, made in the public interest, without the threat of
undue financial prejudice if the decision is challenged successfully. The princi ple
would fittingly fall within the requirements of law guiding the exercise of the CAC’s
discretion, as it is well established in precedent.’
[190] This is a case in which the Commission ought not to be mulcted with costs in
that it was prosecuting allegations of cartel conduct in bona fide fulfilment of its
mandate in the public interest.
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Order
[191] For these reasons the following order is made:
1. The appeals against paragraphs A [1], C [1] 1.1, C [1] 1.3 in respect of the
fourth respondent, C [1]1.4, C [1]1.5, C [1] 1.6, C[1] 1.7, C [1] 1.9, in respect of
the eleventh respondent, C[1]1.10, C [1] 1.11, C [1] 1.12 in respect of
nineteenth respondent, C [1] 1.13, C [1] 1.14 and C [1] 1.15 are upheld.
2. The appeals by the second, third, fourteenth and twenty third respondents are
dismissed.
3. The order of the Competition Tribunal of 30 March 2023 is set aside and
replaced with the following:
3.1. The following applications are dismissed.
3.1.1 BNP Paribas (second respondent) notice of exception under case
number CR212FEB17/EXCO55Jun20;
3.1.2 JP Morgan (third respondent) application brought under case number
CR212Feb17/DSMO88Aug20;
3.1.3 Exception application brought by Credit Suisse Securities (twenty third
respondent) under case number CR212FEB17/DSM107AUG20;
3.1.4 HSBC (fourteenth respondent) dismissal application file under case
number CR212FEB17/EXCO97AUG20.
4. The respondents listed under paragraph 3 must file their answering affidavits
to the referral within 40 days of the order of this Court.
5. There is no order as to costs.
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Counsel for Fifth Respondent : Mr Chris Loxton SC; Mr Robin Pearse SC and Ms
Pranisha Pilla
Instructed By : Cliffe Dekker Hofmeyer
Counsel for Sixth, Eighth and : Mr Dennis Fine SC; Ms Margaretha Engelbrecht
Twenty-Eighth Respondents SC and Ms Lebo Mokwena
Instructed By : Hebert Smith Freehills SA
Counsel for Ninth Respondent : Mr John Butler SC and Ms Michelle Le Roux SC
Instructed By : Fasken
Counsel for Tenth Respondent : Mr Jonathan Blou SC and Ms Lebogang Phaladi
Instructed By : Webber Wentzel
Counsel for Eleventh Respondent : Ms Michelle Norton SC and Mr Gavin Marriot
Instructed By : Werksmans
Counsel for Twelfth Respondent : Mr Rafik Bhana SC and Ms Kerry Williams
Instructed By : Webber Wentzel
Counsel for Thirteenth : Mr Jerome Wilson SC and Ms Penny Bosman
Respondent
Instructed By : Bowmans
Counsel for Fourteenth and : Mr Alfred Cockrell SC and Ms Claire Avidon
Nineteenth Respondents
Instructed By : Hebert Smith Freehills SA
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Counsel for Twenty Fourth and : Mr Anthony Gotz SC and Mr Tsakane Marolen
Twenty Fifth Respondents
Instructed By : Werksmans
Counsel for Twenty Sixth and : Mr Mark Wesley; Mr Nyoko Muvangua and
Twenty Seventh Respondents Ms Nontokozo Mahlangu
Instructed By : Cliffe Dekker Hofmeyer
Date of Hearing :13 – 16 November 2023
Date of Judgment : 8 January 2024