The Commission welcomes the decision of the Competition Appeal Court (CAC) which dismissed the appeal by various banking institutions and in turn upheld the cross appeal by the Commission in the Rand Dollar manipulation matter. 

Delivered in Cape Town this morning, the CAC set aside the Competition Tribunal order in the matter which had partially ruled in favour of the banks. In June 2019 the Tribunal rejected the banks call for the referral against them to be dismissed but ordered the Commission to redraft its charge sheet within 40 days.

The bank in the matter basically fall into three categories - local banks, international banks with presence in South Africa and those overseas based banks without any presence in the country. The two international categories are referred to as local peregrini and pure peregrini, respectively.

The Tribunal found that it did not have jurisdiction (authority) to issue an order compelling the foreign banks that had no presence in South Africa to pay any administrative penalty. The order would not be effective, it said. It directed the Commission to seek only an order that declared the conduct of these to be anti-competitive, and not an administratively penalty.

The international banks with no presence in South Africa appealed this order. The banks are Bank of America Merrill Lynch International Limited, JP Morgan Chase & Co, Australia and New Zealand Banking Group Limited, Standard New York Securities Inc., Nomura International Plc., Macquarie Bank Limited, HBC Bank USA, National Association, Merrill Lynch Pierce Fenner and Smith and Credit Suisse Group.

The CAC said, within 40 days, the Commission must file a new referral (charge sheet) replace all previous affidavits and must set out the facts it relies on to allege it was foreseeable that the alleged conduct would have direct or immediate, and substantial effect in the South Africa.

Further, among other thigs, the Commission must confine its case to one of a single over-arching conspiracy, provided that the Commission is not restricted from alleging that this may be founded on an agreement, arrangement or concerted practise.

The new affidavit must in addition set out the facts on which Commission relies to allege that there are adequate connecting factors between the banks and the Tribunal’s jurisdiction.  

It additionally ordered that certain paragraphs of the previous referral, those related to the conduct of a J.P Morgan entity, should not be included in the amended referral, sufficient to establish personal jurisdiction against the accused banks.

The Tribunal deferred the question as to whether the Commission could join certain additional banks until it had filed the above-mentioned amended referral  and dismissed one of the respondent banks’ (Investec Limited) application for an order declaring the conduct of the Commission in prosecuting the referral to be vexatious and unreasonable.

Thus, the CAC dismissed the application by the banks with costs.

 

Issued by The Competition Commission