The Competition Commission has approached the Constitutional Court for leave to appeal a Competition Appeal Court (CAC) judgment handed down last month, which upheld an appeal by majority of the respondent banks accused in the rand/dollar currency manipulation scandal.
“This appeal will provide the Constitutional Court with an opportunity to pronounce on whether the South African competition authorities have jurisdiction to investigate and prosecute firms that are based outside of the Republic whose anti-competitive conduct affects the South African economy,” said commissioner Doris Tshepe.
The matter dates back to June 2020, when the commission had referred a case to the Competition Tribunal against 28 local and foreign banks alleged to have colluded with one another to fix the foreign exchange rate in respect of the US dollar and the South African rand (USD/ZAR) currency pair between September 2007 to at least September 2013.
The respondent banks were ordered by the Tribunal in March last year to file their answering affidavits in response to the commission’s complaint referral but objected to the Tribunal order and appealed it to the CAC.
The CAC delivered its judgment last month and ordered four of the 21 respondent banks to file, within 40 days, their answering affidavits with the Tribunal. However it also upheld the appeal by 17 respondent banks which sought a CAC order to set aside the March 2023 Tribunal decision.
The four respondent banks ordered by the CAC to file their answering affidavits are BNP Paribas, JP Morgan Chase and Co, HSBC Bank Plc, and Credit Suisse Securities (USA) LLC.
“The CAC order therefore released 17 respondent banks from the complaint referral before they answered the allegations against them and restricted the commission’s case to only four respondent banks,” the commission said.
In its current application for leave to appeal, the commission is appealing the CAC order to the Concourt against 13 respondent banks: Bank of America Merrill Lynch International Designated Activity Company; JP Morgan Chase Bank N.A.; Australia and New Zealand Banking Group Limited; Standard Bank of South Africa Limited; Nomura International Plc; Commerzbank AG; Macquarie Bank Limited; HSBC Bank USA National Association; Merrill Lynch Pierce Fenner & Smith Inc; Bank of America National Association; Nedbank Limited; FirstRand Bank Limited; and Standard Americas Inc.
“The commission will not appeal the CAC order in respect of the Nedbank Group Limited, FirstRand Limited, Credit Suisse Group, and Standard New York Securities Inc.
The commission will also not appeal the CAC order that dismissed the appeals of these four respondent banks: BNP Paribas; JP Morgan Chase and Co; HSBC Bank Plc; and Credit Suisse Securities (USA) LLC. Absa Bank Limited, Barclays Capital Inc and Barclays Bank Plc applied for leniency. Citibank N.A. and Standard Chartered Bank have settled with the commission. Investec Limited and Investec Bank Limited remain respondent banks required to file answering affidavits,” the commission said.
Cape Times