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[2023] ZACAC 1
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Standard Bank of South Africa Limited v Competition Commission Of South Africa (165/CAC/Mar18) [2023] ZACAC 1; [2023] 2 CPLR 15 (CAC) (24 March 2023)
IN
THE COMPETITION APPEAL COURT OF SOUTH AFRICA
Case
No: 165/CAC/Mar18
In
the matter between:
THE
STANDARD BANK OF SOUTH AFRICA LIMITED
Appellant
(Respondent
in the Counter-application)
and
THE
COMPETITION COMMISSION OF SOUTH AFRICA
Respondent
(Applicant
in the Counter-application)
Heard
virtually on :
21 February 2023
Date
of Judgment :
24 March 2023
Coram
:
Vally JA, Nuku and Nkosi
AJJA
J
U D G M E N T
NUKU,
AJA (VALLY JA and NKOSI AJA concurring)
Introduction
[1]
This matter comes before us as a counter-application by the
Competition Commission (“
the Commission”
). It
seeks an order staying a review application (“
the review
application”
) launched by the Standard Bank of South Africa
(“
SBSA”
) to set aside its decision to include SBSA
as one of the respondents in a complaint (“
the complaint”
)
it referred to the Competition Tribunal (“
the Tribunal”
).
The complaint alleges that SBSA, together with twenty-seven other
currency dealers, has contravened the provisions of section
4(1)(b)(i) and (ii) of the Competition Act 89 of 1998 (“
the
Competition Act”
>).
[2]
The review application was preceded by an interlocutory application
by SBSA to the Tribunal in which it sought
access to the Commission’s
record of investigation in terms of
rule 15(1)
of the Rules for the
Conduct of the Proceedings in the Competition Commission (“
the
Commission Rules”
). For convenience I refer to this
interlocutory application as the rule 15 application. The rule 15
application was unsuccessful,
and the review application was launched
on its heels. In response, the Commission launched an application to
stay the review proceedings,
either permanently or pending
finalisation of all appeals arising out of the dismissal of the rule
15 application and/or the finalisation
of an exception application
filed by SBSA (“
the exception application
”) that
was then pending before the Tribunal.
[3]
The argument raised by the Commission in support of its application
to stay the review proceedings is primarily
that this court should
exercise its inherent power to protect and regulate its process by
granting the stay, because failure to
do so would result in SBSA
achieving the outcome it had failed to achieve in the rule 15
application. This is because, unless an
order to stay the review
proceedings is granted by this court, the Commission will be obliged,
in terms of rule 53(1)(b) of the
Uniform Rules of Court (
rule 53
),
to grant SBSA access to the record.
[4]
SBSA opposes the application, essentially on the basis that the
Commission has failed to satisfy the requirements
for either a
permanent or temporary stay of proceedings. It argued that the
Commission should be directed to despatch the record
in terms of rule
53 within such period as this court may deem fit.
Factual
Background
[5]
The matter has a long and tortuous history, some of which is not
particularly relevant for the purposes of
this application. It
started with a decision taken by the Commission during or about April
2015 to initiate the complaint against
eleven multinational banks for
an alleged involvement in the prohibited practice of price-fixing in
respect of the USD/ZAR currency
pair. This allegedly occurred in
relation to bids, offers and bid-offer spreads in respect of spot
trades
[1]
, forward trading
[2]
and future trades
[3]
in the
USD/ZAR exchange market in contravention of
section 4
(1)(b)(i) of
the
Competition Act. SBSA
, at that stage, was not one of the named
multinational banks.
[6]
The complaint was amended on or about 23 August 2016 to include SBSA
and eleven other multinational banks.
The complaint, as amended, also
included a further prohibited practice in contravention of
section
4(1)(b)(ii)
of the
Competition Act and
the allegations in this regard
were that the multinational banks concerned were accused of entering
into an agreement and/or engaging
in a concerted practice to divide
markets by allocating customers.
[7]
The Commission, acting in terms of
section 50(1)
of the
Competition
Act, referred
the complaint to the Tribunal on 15 February 2017 (“
the
complaint referral”
). Upon becoming aware of the complaint
referral, SBSA instructed its attorneys of record, Herbert Smith
Freehills South Africa
LLP (“
HSF”
), to engage the
Commission in an attempt to resolve the matter. On 22 February 2017,
HSF addressed a letter to the Commission requesting
a meeting for the
purposes of discussing the complaint referral and obtaining more
specific details regarding SBSA’s alleged
involvement in the
prohibited practices. The Commission responded the next day advising
of its view that the complaint referral
contained sufficient
particularity necessary to enable SBSA to plead or consider its
position. In the same correspondence, the
Commission advised that it
expected SBSA to answer to the complaint referral in the normal
course.
[8]
On 1 March 2017, HSF addressed a further letter to the Commission,
this time requesting the Commission’s
record of investigation
in terms of rule 15(1) of the Commission Rules. This was followed by
a further letter dated 27 March 2017
demanding the production of the
Commission’s record by no later than 7 April 2017, failing
which SBSA would institute legal
proceedings.
[9]
The Commission responded on 27 March 2017 advising that it was in the
process of preparing the record, whereafter
it would provide HSF with
the index to enable them to indicate the parts of the record they
required copies of. On 20 April 2017,
HSF sent a follow up email to
the Commission enquiring about the finalisation of the record. The
Commission responded the next
day advising that it was attending to
the request. The Commission, in turn, requested HSF to explain the
basis of the urgency of
the request for the record. HSF responded on
the same day advising that a reasonable time had elapsed since a
request for the record
was made, and that they were in the process of
preparing an application to compel the production of the record as
they had been
instructed by SBSA to do so.
[10]
On 26 April 2017, SBSA launched an application in the Tribunal to
compel the production of the record by the Commission
(“
the
rule 15 application
”). The Commission opposed the
application. On 6 November 2017, after hearing the application, the
Tribunal directed the Commission
to produce the record of its
investigation. However, it directed the Commission to do so at the
time when the Commission makes
discovery in the complaint referral
proceedings. Dissatisfied with the order made by the Tribunal, SBSA
filed its appeal with this
court on 22 November 2017.
[11]
In the meantime, the complaint referral proceedings continued. A
pre-hearing conference was held by the Tribunal on 10
March 2017
wherein the Commission was directed to file a supplementary affidavit
to the complaint referral by no later than 31
March 2017, with the
respondents to file their exceptions, if any, by no later than 3 May
2017.
[12]
The Commission filed its supplementary affidavit to the complaint
referral on 31 March 2017. This was followed by a further
supplementary affidavit filed on 7 April 2017. SBSA filed an
exception to the complaint referral in terms of rule 42 of the Rules
for the Conduct of Proceedings before the Competition Tribunal (“
the
Tribunal Rules”
) on 3 May 2017.
[13]
The grounds relied upon by SBSA in its exception were essentially the
following:
(i)
that SBSA is cited in the complaint referral on the basis of its
alleged
involvement in only one of the identified prohibited
practices without any disclosure of particular or identifiable dates
(“
the single instance of involvement ground”
);
(ii)
that SBSA cannot be said to be in a horizontal relationship with all
of the
Banks cited by the Commission in the complaint referral (“
the
lack of horizontality ground”
); and
(iii)
that the commission initiated the complaint in respect of SBSA on 31
August 2016 and had
failed to plead facts to support the necessary
conclusion that the conduct relied on occurred, or had a continuing
effect, within
the three-year period prior to the initiation of the
complaint (“
the time-bar ground”
).
[14]
A pre-hearing conference was held on 6 September 2017, wherein the
Tribunal directed that the exceptions would be heard
from 24 to 26
January 2018. The Tribunal further directed that the hearing would be
confined to only those exceptions that do not
require consideration
of facts not contained in the complaint referral, and that no
exceptions in the form of special pleas or
in the form of a defence
on the merits would be heard.
[15]
On 20 December 2017, the Commission filed a further supplementary
affidavit to the complaint referral. As a result, the
hearing of the
exceptions which had been scheduled to commence on 24 January 2018
could not proceed. Instead, a further pre-hearing
conference was held
on 24 January 2018 wherein the Commission was granted leave to file a
further supplementary affidavit to the
complaint referral. The
respondents were, in turn, directed to file their revised exceptions,
if any, by 29 March 2018. It was
further directed that the revised
exceptions would be heard from 30 July 2018 to 3 August 2018.
[16]
On 20 March 2018, while the appeal relating to the production of the
record was still pending before this court, and
the exception
proceedings were still pending before the Tribunal, SBSA launched the
review application in this court. In this application
– which
is presently before us - it contends that the complaint referral is
invalid and unlawful in terms of
section 62(2)
of the
Competition Act
and
that, consequently, the Tribunal had no jurisdiction to entertain
the complaint referral.
[17]
The case of SBSA in the review application is that the decision of
the Commission to refer it to the Tribunal was unlawful
and invalid
because:
(i)
the Commission’s entire case is premised on a single discussion
between an employee of SBSA and
an employee of Barclays Bank Plc
(
Barclays
) which took place on 1 October 2012. This is a
repetition of the single instance of involvement ground;
(ii)
SBSA, as an authorised foreign currency dealer, in South Africa, in
terms of the South African Exchange Control
Regulations, 1961 (“
the
EXCON Regulations”
) engaged with Barclays as a potential
customer as the latter was not an authorised foreign currency dealer
in South Africa and,
as such, was prohibited by law from competing
with SBSA. In short, its argument was that it engaged with Barclays
in a vertical
relationship and not in a horizontal one as
contemplated in
section 4
(1) (b) of the
Competition Act. This
is a
repetition of the lack of horizontality ground; and,
(iii)
the complaint was initiated more than three years after the
discussion of 1 October 2012 that was relied
upon by the Commission,
and the Commission made no allegation of the said discussion having
an effect within the three years prior
to the complaint. This is a
repetition of the time-bar ground.
[18]
On 20 April 2018 the Commission brought this counter-application. It
challenged the jurisdiction of this
court to entertain the review
application and, in the alternative, it sought an order for the
permanent stay of the review application.
In the further alternative,
it sought an order for the temporary stay of the review application
pending the finalisation of SBSA’s
appeal relating to the
production of the Commission’s record of investigation which
was then pending before this court, including
any further appeals
emanating therefrom, as well as the finalisation of an exception
application brought by SBSA in the Tribunal.
[19]
The issue of this court’s jurisdiction to hear legality reviews
has been settled by the Constitutional
Court in
Group
Five
[4]
,
and the Commission abandoned its challenge to this court’s
jurisdiction to entertain the review application. However, it
persisted in seeking relief in the form of either a permanent or a
temporary stay of the review application.
[20]
The
rule 15
application, which was pending at the time of the
institution of this counter-application has since been finalised by
the Constitutional
Court on 20 February 2020.
[21]
The exception application that was pending before the Tribunal at the
time when this counter-application
was launched was also finalised by
the Tribunal on 12 June 2019 when it dismissed some and upheld some
of the exceptions raised
by the respondents, including those raised
by SBSA. As part of its ruling in the exception applications, the
Tribunal directed
the Commission to file a new complaint referral
affidavit to substitute for and replace all the previous complaint
referral affidavits.
The Tribunal further directed the respondents,
including SBSA, to file their answering affidavits within twenty days
of the filing
of the Commission’s new complaint referral
affidavit.
[22]
On 20 February 2020 the Constitutional Court delivered its judgment
in the
rule 15
application.
[5]
The majority judgment, penned by Jafta J and Khampepe J, held that
once ‘litigation commences the rules relating to discovery
take
over.’
[6]
Stating the same
principle differently, it opined: ‘(o)nce a complaint is
referred to the Tribunal, the Tribunal Rules are
triggered and govern
the disclosure and discovery of documents between the litigating
parties.’
[7]
The majority
judgment recognises that SBSA is entitled to the record that is in
the possession of the Commission as it is a litigant
before the
Tribunal. It then went on to consider the question as to when would
it be ‘reasonable’ for the Commission
to produce the
record, and held:
‘
It
is important that “reasonable” in this context be
understood against the facts of the case. If the requestor of the
record is a litigant in the matter, it is most likely that the record
is being requested for purposes of litigation. These are
important
factors to take into consideration when determining a reasonable time
period. This is because litigation would be ongoing
and the litigant
would have an opportunity to request further discovery under rule 22
of the Tribunal Rules. Therefore, it may
be efficacious and
reasonable for the record to be provided at the close of
pleadings.’
[8]
[23]
In short, the Constitutional Court held that the most suitable
approach to follow in a case where an accused firm which
has been
referred to the Tribunal seeks the record in the possession of the
Commission, it should access the record in terms of
the rules of the
Tribunal. The rules of the Tribunal allow for the record to be
accessed through the process of discovery, which
generally occurs
after the close of pleadings.
[24]
The Commission filed its new complaint referral affidavit on 1 June
2020. SBSA and the other respondents
were, in terms of rule 16 of the
Tribunal rules required to plead – the rule employs the word
‘answer’ –
to the complaint referral within 20
business days of 1 June 2020. Neither SBSA nor any of the other
respondents did so. However,
on 5 August 2020, SBSA’s attorneys
addressed a letter to the Commission claiming that its records do not
match the Commission’s
allegations, and so in order for it to
answer to the complaint it requires the ‘stored data sets that
are in the Commission’s
possession and upon which’ the
Commission ‘has relied for these allegations’. The
‘stored data’ have
also been referred to as ‘market
data’
[9]
. It is some of
the evidence the Commission would be relying upon to prove its case
against the respondents. SBSA, therefore, sought
access to these
records, as ‘they are necessary for purposes of pleading.’
SBSA asserts that it is ‘entitled’
to be provided with
these documents in terms of rule 55 of the Tribunal rules, read with
rule 35(14) of the Uniform rules. The
assertion is neither explained
nor elaborated upon. rule 55 of the Tribunal rules deals with the
‘Conduct of hearings’
and sub-rule 35(14) of the Uniform
Rules allow for a party to seek a specific document, precisely
described, of which it has knowledge,
to be discovered before it
pleads. By its own account, SBSA seeks to access this data which, no
doubt would constitute a significant
part of the record in the review
application, prior to answering to the allegations in the complaint
referral.
[25]
The Commission’s attorneys responded the next day, stating that
it is the Commission’s view that
SBSA does not require any
‘further particulars or documents’ to plead to the
complaint referral and that it will not
be furnishing the ‘data
sets’. The attorneys further recorded the following:
‘
The
new Referral affidavit was filed on 1 June 2020. Your client has
waited over two months to make this request. Your client’s
contention at this very late stage that it is unable to plead to the
new Referral without the underlying evidence appears to be
another
strategy to raise interlocutory disputes and to avoid responding to
the merits of the case made against it. The Commission
encourages
your client to take seriously the comments by the Constitutional
Court in its judgment on your client’s previous
interlocutory
applications that parties should not be permitted to drag out the
proceedings through interlocutory disputes designed
to delay and
prevent the cartel dispute from being determined on its merits.’
[26]
SBSA did not respond to this letter. At the same time, neither it nor
any of the other respondents filed
their pleas as directed. Instead,
on 17 August 2020 they filed applications for the dismissal of the
complaint referral (“
the dismissal applications”
).
SBSA, in its dismissal application, decries the Commission’s
refusal to grant it access to the ‘data sets’
it claimed
it is ‘entitled’ to, and recorded that its rights in that
regard remained reserved. It, further, sought
an order dismissing the
complaint referral on the basis that, among others, it did not comply
with the order of this court, and
further it did not make out a case
of an alleged contravention of the Competition Act as: (i) it is
grounded in a single instance
of involvement on the part of SBSA;
(ii) it fails to demonstrate that a horizontal relationship existed
between SBSA and the alleged
co-colluder, Barclays Bank; and (iii) it
is time-barred. It is evident then, that SBSA’s case in the
dismissal application
is, in essence, a repetition of its case in the
exception as well as its case in the review application.
Issue
for determination
[27]
The issue for determination by this court is whether the Commission
has satisfied the requirements of the
relief it seeks, namely, an
order for either the permanent stay or the temporary stay of the
review proceedings.
The
applicable legal principles
[28]
This court derives its authority to grant an order for the stay of
proceedings in appropriate circumstances
from the provisions of the
Competition Act, read
with the relevant provisions of the
Constitution of the Republic of South Africa, 1996 (
the
Constitution
). In this regard
section 36(1)(a)
of the
Competition
Act provides
that:
‘
There
is hereby established a court to be known as the Competition Appeal
Court, which is a court contemplated in section 166(e)
of the
Constitution with a status similar to that of a High Court.’
[29]
For its part, section 166(e) of the Constitution provides that:
‘
The
courts are … any other court established or recognised in
terms of an Act of Parliament, including any court of a status
similar to either the High Court of South Africa or the Magistrate’s
Courts.’
[30]
Section 166(e) of the Constitution contemplates that an Act of
Parliament can only create one of the two
courts, namely, a court of
a status similar to that High Court or a court of a status similar to
that of the Magistrate’s
Court.
[31]
The
Competition Act is
the Act of Parliament contemplated in section
166 (e) of the Constitution. As the Competition Appeal Court enjoys a
status equivalent
to that of the High Court, it is endowed with the
inherent power that flows from the provisions of section 173 of the
Constitution
which provides that:
‘
The
Constitutional Court, the Supreme Court of Appeal and the High Court
of South Africa each has the inherent power to protect
and regulate
their own process, and to develop the common law, taking into account
the interests of justice.’
[32]
Commenting on the provisions of s 173 of the Constitution Madlanga J,
writing for the majority in
Mokone
[10]
had this to say:
‘
[67]
Put simply, this says that the mentioned courts may regulate their
own process taking into account the interests of justice….,
I
do not see why proceedings may not be stayed on grounds dictated by
the interests of justice. Whatever the import of what was
said by the
courts previously may be, the Constitution lays down its own test;
and it has everything to do with the interests of
justice.
[68]
In this context, the idea of interests of justice is quite wide. I
will not attempt to delineate what it encompasses. Suffice
it to say,
what justice requires will depend on the circumstances of each case.’
[33]
Counsel who appeared before us were in agreement that an applicant in
the stay application must satisfy the
court, firstly, about its
prospects of success; secondly, that the balance of convenience
favours the granting of the stay, and
thirdly, that it is in the
interest of justice to stay the proceedings.
[11]
[34]
Having regard to the test as explained by the Constitutional Court in
Makone
(supra)
, I think that the interest of
justice is of paramount importance in this court’s
determination of the Commission’s
application to stay the
review proceedings in this matter. The decision as to whether or not
to grant such application on the grounds
dictated by the interest of
justice lies entirely in the discretion of this court, which is wide
but must be exercised judiciously
taking into account such other
factors as the court may, depending on the circumstances of each
case, consider relevant, such as
the prospects of success and the
balance of convenience.
Is
it in the interest of justice to grant or refuse the stay of the
review application?
[35]
Stripped of all the legal nomenclature, what this case is about is
SBSA’s access to the Commission’s
investigation record
before it pleads to the Commission’s case before the Tribunal.
SBSA’s pursuit of the Commission’s
investigation record
commenced in a matter of weeks after the referral of the complaint on
1 March 2017. Having instituted an application
for the production of
the Commission’s record of investigation – the rule 15
application - SBSA was content to await
the outcome of its
application to the Tribunal before launching the review application.
In fact, SBSA waited for over a year before
launching the review
application, and it had been relentlessly pursuing the Commission’s
record of investigation in the period
prior to launching the review
application. It is also of some significance that SBSA instituted the
review after it had been met
with an unfavourable outcome in the
Tribunal proceedings for the production of the Commission’s
record.
[36]
SBSA contends that there is a difference between the Commission’s
record of investigation and the record
that the Commission must
produce under rule 53. With respect I disagree. One only needs to
look at the grounds relied upon by SBSA
in its exception, the review
application, as well as the dismissal application to dispel this
proposition. SBSA raised exactly
the same arguments in the three
applications with the difference that the review application, so far,
is limited to the three grounds,
whereas the exception application
and the dismissal application raised additional grounds. These extra
grounds, however, do not
detract from the fact that the three grounds
raised in the review are key to SBSA’s claim in its exception –
which
has been finalised - and its dismissal application.
[37]
SBSA’s grounds of review really go to its defence on the merits
in the referral matter that is pending
before the Tribunal. Before it
can respond to SBSA’s grounds in the review application, the
Commission would first be required
to make available to SBSA the
record of its investigation which forms the basis of its decision to
refer to the complaint to the
Tribunal. Such record will, of course,
contain the same information and/or documentation as would be
contained in the Commission’s
record of investigation which
SBSA had failed to obtain through the rule 15 application, but which
it will have access to during
the discovery process in the complaint
proceedings before the Tribunal.
[38]
In the event of this court not granting the application to stay, the
Commission will be obliged to produce
the record. The production of
the record would grant SBSA access to the documents and information
it sought but failed to obtain
through its rule 15 application and
its request made – albeit in letter form at this stage –
in terms of rule 55 of
the Tribunal Rules and rule 35(14) of the
Uniform Rules. That application and request were made because it
claims that it is unable
to answer to the complaint referral without
first scrutinising the record, or part thereof, in the possession of
the Commission.
It is very clear that SBSA is determined to gain
access to the record before answering to the case in the complaint
referral.
[39]
The review application grants it access to all the information,
including the market/stored data it has sought
but failed to obtain,
that is in the possession of the Commission. It would, in essence,
gain access to the evidence of the Commission
before it answers to
allegations of the Commission, which it is required to do in terms of
the rules of the Tribunal. In my judgment,
this consequence would be
unfair to the Commission. For that reason, it should not be
countenanced. I hold, following upon the
dictum
in the majority judgment of the Constitutional Court, that it is
‘efficacious and reasonable’ that it should only have
access to this information ‘at the close of pleadings’
[12]
in the complaint referral proceedings before the Tribunal. The
Tribunal rules provide it with sufficient avenues and protections
to
ensure that it eventually gains access to the condemnatory as well as
exculpatory evidence against it. Those rules are designed
to ensure
that both it and the Commission have a fair and reasonable
opportunity to pursue their respective cases. They would be
circumvented if the review application is allowed to proceed prior to
the conclusion of the discovery stage of the complaint referral
proceedings. Their circumvention would be unfair and could also be
prejudicial to Commission. Hence, there is much merit in the
Commission’s call for a temporary stay of the review
application.
[40]
Further, the production of the record by the Commission would, in my
view, place SBSA in an advantageous position where,
unlike all the
other litigants in the Tribunal proceedings, it will have access to
documents which it would ordinarily be unable
to access before
discovery in the Tribunal proceedings. This, of course, is not of
SBSA’s making but an unintended consequence
of the
reviewability of the Commission’s decision to refer the
complaint to the Tribunal. It is a consequence that may well
open the
floodgates to future reviews. An accused firm may immediately upon
receiving notice of a complaint referral launch a review
application
in this court where it would seek to set aside the complaint
referral. Such a consequence would intolerably frustrate
the
Commission’s efforts to give effect to the
Competition Act. A
temporary stay of review proceedings, as in this case, until the
conclusion of the discovery stage in complaint referral proceedings
before the Tribunal avoids the undesirable consequence.
[41]
The question to ask then is whether it would be in the interest of
justice to allow this unintended consequence
to benefit SBSA in
circumstances where the review grounds are nothing more than SBSA’s
defence on the merits. The answer
to this question must, in my view,
be a resounding no, particularly because all litigants are entitled
to, and must receive, equal
treatment and benefit of the law as s 9
of the Constitution demands. To allow SBSA to obtain what amounts to
an unfair advantage
over the Commission in the complaint referral
proceedings as well as preferential treatment in comparison to the
other respondents,
merely by dint of having instituted the review
application would be wrong. In my judgment, this subverts the fair
and just process
carefully set out in the Rules of the Tribunal. It
is therefore in the interests of justice that the review application
be stayed.
[42]
Having come to the conclusion that the interests of justice dictate
the granting of the stay, the next question
to consider is whether to
grant a permanent stay or temporary stay. An order for the permanent
stay of proceedings is an extra-ordinary
remedy that has far-reaching
consequences. Its consequences have the potential to render nugatory
a person’s right to access
to courts as contained in section 34
of the Constitution. In my view, a permanent stay would not be
appropriate in the present
circumstances as all that this court is
required to do is to manage the unintended consequence referred to
above.
[43]
Ms Engelbrecht submitted that it is not competent to grant the
temporary stay because the exception application,
as well as the
appeal, have been finalised and the Commission has not amended its
notice of motion. As already stated above, the
appeal in respect of
the application for the production of the Commission’s record
has already been finalised, and it is
highly unlikely that further
appeals may arise from that appeal. Therefore, an order staying the
review application pending the
finalisation of such appeal is no
longer competent.
[44]
It is also correct that the exception application has since been
finalised. However, the finalisation of
the exception has not
affected the progression of the complaint referral proceedings. As
already stated, this matter is about ensuring
that SBSA is not
treated differently from the other litigants who litigate in the
Tribunal. The effect of the dismissal application
is that SBSA is not
required to plead yet and, consequently, the discovery stage has not
been reached. To uphold SBSA’s submission
that the temporary
stay is incompetent in the absence of an amendment to the
Commission’s notice of motion would be to place
form over
substance. In my view, it is quite competent for this court to craft
an order that would delay the production of the
record by the
Commission until the discovery stage. Such an order would be fair to
both the Commission and SBSA. For the Commission,
it would deal with
the concern of producing documents before SBSA pleads in the referral
proceedings, while for SBSA it would not
delay its review application
unreasonably. The delay in the finalisation of the review application
is, I hold, necessary to ensure
that justice prevails in this matter.
Conclusion
[45]
In conclusion, I am satisfied that the interests of justice dictate
that the temporary stay of the review
should be granted until the
discovery process in the referral proceedings before the Tribunal is
complete.
Costs
[46]
The Commission has been successful in its counter-application. I see
no reason why it should not be awarded
its costs. It had employed
three counsel. I believe that it would be fair to award it the costs
consequent upon the employment
of two counsel. The matter has a long
history, has spawned a number of interlocutory applications and
consists of a voluminous
record, all of which, in my view, justified
the employment of two counsel.
Order
[47]
In the premises the following order shall issue:
a.
The counter-application succeeds
b.
The review application is stayed until the complaint referral
proceedings before the Tribunal have passed the discovery
stage;
c.
The Commission is directed to produce the record in terms of rule 53
simultaneously with the delivery of its discovery
affidavit in the
complaint referral proceedings before the Tribunal; and
d.
The applicant is to pay the costs of the counter-application,
including the costs consequent upon the employment
of two counsel.
L
G Nuku
Acting
Judge of Appeal
Competition
Appeal Court of South Africa
B
Vally
Judge
of Appeal
Competition
Appeal Court of South Africa
M
E Nkosi
Acting
Judge of Appeal
Competition
Appeal Court of South Africa
APPEARANCES
Counsel
for the Appellant:
Advocate M Engelbrecht SC
Instructed
by:
Herbert Smith Freehills –
South
African Attorneys Inc.
Counsel
for the Respondent:
Advocate T Ngcukaitobi SC
Advocate
I Kentridge
Advocate
H Drake
Instructed
by:
Ndzabandzaba Attorneys
[1]
The
spot trade is a transaction whereby a trade is done immediately and
executed at the current spot rate at that specific point
in time.
[2]
A
forward trading is a transaction between two traders and relates to
where rates and quantity of currency being bought or sold
are agreed
ahead of time at a price set now and the sale is concluded at the
point of agreement. The effect of this is that the
transaction takes
place at a future date at prices agreed upon on the date of the
conclusion of the agreement.
[3]
A
future trade is a transaction between traders which involves a
clearing house. It gives an investor the right to buy or sell
an
underlying currency at a fixed exchange rate at a specified date in
the future.
[4]
Competition
Commission of South Africa v Group Five Construction Ltd
2023
(1) BCLR 1 (CC)
[5]
Competition
Commission of South Africa v Standard Bank of South Africa Limited
[2020]
ZACC 2; 2020 (4) BCLR 429 (CC)
[6]
Id at [161]
[7]
Id at [181]
[8]
Id at [196]
[9]
This data, according to the complaint referral affidavit
demonstrably show that the respondents, including SBSA, held the
focal
point of US$/ZAR rate, maintained a spot exchange rate in
order to reduce volatility in the exchange rate and withheld quotes
which enabled them to dominate the market.
[10]
Mokone
v Tassos Properties
2017 (5) 456 (CC) at [67] – [68]
[11]
The
test adopted by the Competition Tribunal from the High Court in
Novartis
SA (Pty) Ltd v Main Street (2) (Pty) Ltd
(2)
[2001-2002] CPLR 470
(CT) paras 14-16 and confirmed by this
Court in
Monsanto
South Africa (Pty) Ltd and Another v Bowmann Gilfillan and Others
(109/CAC/JUN11)
[2011] ZACAC 5
(18 August 2011 at p. 17, lines 14 –
16).
[12]
See [22] above