The Competition Commission says it has approached the Constitutional Court of South Africa for leave to appeal the Competition Appeal Court’s (CAC) judgment from January 2024 that largely dismantled its case of rand manipulation against major banks.<\/p>\n\n\n\n
On 8 January, the CAC upheld an appeal by the majority of the respondent banks accused by the commission of price-fixing. The appeal was upheld on the grounds that the commission lacked the necessary jurisdiction as well as a lack of evidence.<\/p>\n\n\n\n
The commission has been pursuing a case against 28 banks since 2015, including the big local banks and many other international banks, alleging that these groups colluded with each other to fix the foreign exchange rate in respect of the US Dollar and the South African Rand currency pair. <\/p>\n\n\n\n
The respondent banks were ordered by the Competition Tribunal in March 2023 to file their answering affidavits in response to the commission\u2019s complaint referral but objected to the order and appealed it to the CAC.<\/p>\n\n\n\n
The CAC delivered its judgment in January 2024 and upheld the appeal for all but four of the 21 respondent banks.<\/p>\n\n\n\n
The four respondent banks who did not escape the order to file their answering affidavits are BNP Paribas, JP Morgan Chase and Co, HSBC Bank Plc, and Credit Suisse Securities (USA) LLC.<\/p>\n\n\n\n
For the rest of the accused banks, the CAC order had the effect of releasing 17 respondent banks from the complaint referral before having to answer the allegations. This also ultimately restricted the commission’s case to just four banks.<\/p>\n\n\n\n
In its current application for leave to appeal, the commission is now appealing the CAC order to the ConCourt against most of the respondent banks. <\/p>\n\n\n\n
These banks are:<\/p>\n\n\n\n
The commission said it will not appeal the CAC order in respect of the Nedbank Group Limited, FirstRand Limited, Credit Suisse Group, and Standard New York Securities Inc.<\/p>\n\n\n\n
The commission will also not appeal the CAC order that dismissed the appeals of the four respondent banks: BNP Paribas, JP Morgan Chase and Co, HSBC Bank plc, and Credit Suisse Securities (USA) LLC.<\/p>\n\n\n\n
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. <\/p>\n\n\n\n
Investec Limited and Investec Bank Limited remain respondent banks required to file answering affidavits.<\/p>\n\n\n\n
\u201cThis 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,\u201d the commission said.<\/p>\n\n\n\n