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South Africa: The Precedent Setting ‘Forex Case’

John Miles Oxenham and Gina Lodolo

South Africa: The Precedent Setting ‘Forex Case’
CGinspiration via Getty Images

Introduction

In April 2015 the South African Competition Commission (“Commission”) initiated a complaint in relation to allegations of price-fixing and market division in the trading of the United States Dollar and South African Rand currency pair. The Commission first referred the complaint to the Competition Tribunal (“Tribunal”) in 2017 and after various exceptions from the respondent banks, it was determined by the Competition Appeal Court (“CAC”) in 2020 that the Commission should file a new referral affidavit. As a result, in June 2020 the Commission filed a new referral against 28 local and foreign banks. Notwithstanding the renewed referral, the Commission’s case has been met with many challenges, which has resulted in the Commission instituting an appeal to the Constitution Court against a judgment delivered by the CAC in January 2024.

This article seeks to unpack the precedent setting principles that have emanated from this case to date and are likely to further arise as a result of the appeal by the Commission to the Constitutional Court.

Background

In 2019, the Tribunal started to grapple with the issue of whether it had jurisdiction in hearing the Commissions complaint as a number of respondent banks were peregrini. In this regard, the Tribunal made a distinction between pure peregrini and local peregrini, the distinction being that local peregrini had some form of presence in South Africa, wherein pure peregrini were neither domiciled in South Africa, nor did they carry on any business in South Africa. In addition, the Tribunal had to consider subject matter jurisdiction to demonstrate that the alleged conduct of the traders at the various respondent banks had an effect in South Africa that was sufficient to establish subject matter jurisdiction, dealt with under section 3(1) of the Competition Act 89 of 1998 (“Act”).

The Tribunal held that the Commission was required to file a new referral in relation to local peregrini demonstrating that it was foreseeable that the alleged conduct would have a substantial effect in South Africa (i.e., demonstrate subject matter jurisdiction). In addition, the Tribunal held that the Commission did not have personal jurisdiction over pure peregrini (although it held that a declaratory order could be granted in relation to foreign peregrini, the effect being that the provisions relating to administrative penalties and civil damages were excluded). This decision was appealed to the CAC in 2020 by the pure peregrini banks resulting in the CAC providing the Commission with a similar opportunity to file a new complaint referral vis-à-vis the pure peregrini respondents in order to establish personal and subject matter jurisdiction by demonstrating adequate connecting factors to establish a single overarching conspiracy (“SOC”) between all of the named respondent banks.

Pursuant to renewed complaint referrals from the Commission and an order by the Tribunal issued in March 2023, the protracted litigation was considered by the CAC again in 2024, which is the subject of appeal to the Constitutional Court. This most recent decision from the CAC dealt not only with the issue of jurisdiction but also with the issue of prescription and the ability to appeal an exception.

Prescription

The issue of prescription arose as the Commission had sought to join additional respondents in its renewed referral affidavit. The CAC held that the Tribunal erred in holding that the Act enables the Commission to initiate a complaint by way of tacit initiation and therefore can tacitly initiate against a respondent at any time without fear or prescription and could therefore add additional respondents after its referral to the Tribunal. The CAC held that the Court in Pickfords provided that “a complaint is against a practice and not specific parties, hence the Commission can add parties to the complaint after the generation of the initial complaint”.

Appealability of an exception

With regards to the appealability of an exception, through reliance on the Supreme Court of Appeal decision in TWK Agriculture Holdings the Commission contended, inter alia, that the exception could not be appealed as it could not be considered as final. The CAC held that an exception could be subject to an appeal, particularly in relation to exceptions relating to jurisdiction, and that appealability requires an interest of justice test - TWK Agriculture Holdings had failed to consider the preceding Constitutional Court decision in Lubashe, which endorses an interest of justice test. First, the CAC rejected arguments against the appealability of the exceptions, finding that any ruling on the question of personal and subject matter jurisdiction would be effectively final. Second, the CAC found that, due to the lengthy and costly nature of a full trial, it would also be in the interests of justice to enable an appeal to determine the question of jurisdiction first before engaging in a full trial. The CAC therefore concluded that the exception was appealable.

SOC to establish personal jurisdiction (for pure peregrini) and subject matter jurisdiction (for local peregrini)

The SOC alleged by the Commission in its renewed referral affidavit was that the traders at the respondent banks 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”. Much reliance was placed on the content and frequency of communication between the traders in the Bloomberg chatrooms (whether an active or passive participant) and unusual behavior in the markets in 2007 and 2013. To determine personal jurisdiction, the Commission alleged that the connecting factor was an SOC to manipulate the rand by all respondent banks. In relation to subject matter jurisdiction, the Commission alleged that this had been met by virtue of all respondent banks being involved 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 had the potential to have this effect”.

Taking into consideration European precedent and in particular the case of Team Relocations, the CAC held that even if a respondent bank is not involved in all of the conduct that made up an SOC, it could form part of the SOC even if their participation is not identical to the other parties of the conspiracy. The CAC held that in order to establish personal jurisdiction against the pure peregrini banks, there had to be sufficient connecting factors demonstrating the link to the South African banks as part of an overall conspiracy – linking the local banks with the foreign banks. After considering the case against each pure peregrini bank, which requires both subject matter and personal matter jurisdiction, the Commission failed to demonstrate personal matter jurisdiction because it failed to provide which specific banks the traders were allegedly acting on behalf of, did not demonstrate traders participating in implicated chatrooms, and did not demonstrate participation between the foreign banks and the South African respondent banks. Additionally, the Commission faulted in making material averments that predated the alleged date that respondents had allegedly joined the SOC. The CAC also highlights instances wherein the Commission’s referral is littered with inconsistencies and presumptions that failed to demonstrate sufficient connecting factors between conduct of the pure peregrini banks, local peregrini and local banks (incola) needed to establish subject matter jurisdiction over local peregrini and local banks.

Conclusion

While the CAC emphasised that cartel conduct is the most egregious form of anticompetitive behaviour, the Commission was provided a final opportunity in 2020 to set out a coherent case, which it failed to do. In this regard, the Commission failed to demonstrate the elements of an SOC, as confirmed by the CAC: a common anticompetitive objective, an overall plan in which all respondent banks participated to pursue a common economic objective and each firm’s own conduct intentionally contributed to the overall objective of the SOC. Additionally, the Commission had to demonstrate that every respondent bank was aware of the actual conduct (planned or effected) leading to the objectives of the SOC and able to reasonably foresee that its participation in the SOC.

To assert jurisdiction over the peregrini banks, should the Commission have successfully demonstrated an SOC, the CAC was willing to develop the law by extending the common law principle of personal jurisdiction (requiring local presence/ consent under common law) where the peregrini formed part of a conspiracy, which was formed together with local banks. In addition, the trades outlined by the Commission failed to demonstrate an appreciable ‘effect’ on the rand, and hence failed to establish subject matter jurisdiction in accordance with section 3(1) of the Act.

Lastly, the CAC importantly held that a holding company cannot be joined merely because it is a subsidiary of the company in question. The Commission is currently appealing the above finding against 13 respondent banks to the Constitutional Court.

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