Competition Commission heads to ConCourt to appeal rand manipulation case

The competition commission said it was appealing the rand manipulation judgment. File Picture

The competition commission said it was appealing the rand manipulation judgment. File Picture

Published Mar 5, 2024


The fight over the manipulation of the rand is headed to the Constitutional Court after the Competition Commission appealed the judgment of the Competition Appeal Court against 18 banks.

Competition Commission commissioner Doris Tsepe told members of the National Assembly’s Portfolio Committee on Trade and Industry on Tuesday their appeal was based on several grounds.

At the heart of the appeal was to seek clarity from the Constitutional Court on the enforcement of its regulations against cartels which operate across the world.

She said jurisdiction will have to decide how far the Competition Commission can go in prosecuting firms based in other parts of the world, but whose conduct impacts on South Africa.

Tsepe also said the other clarity they were requiring from the apex court was on when exactly is evidence presented, is it at trial stage or during referral.

The commission has been investigating the manipulation of rand since 2015. But five of the banks were fined by the commission after they agreed to give evidence against 23 other banks.

Barclays PLC, Barclays Capital and Absa were granted leniency against prosecution.

Citbank was fined R69.5 million and Standard Chartered Bank was slapped with a fine of R42.7m.

But political parties, including the African National Congress (ANC), the Economic Freedom Fighters (EFF) and the South African Communist Party (SACP) were up in arms, arguing that the fines were a slap on the wrist, in view of the damage caused to the economy by the manipulation of the rand.

The parties called for the prosecution of individuals implicated in rand manipulation.

Other parties called for the tightening of the laws against cartels.

The Competition Commission said on Tuesday it has discussed with the South African Reserve Bank and the Financial Sector Conduct Authority who agreed that the commission must continue to prosecute the cartels.

Tsepe said they have now gone to the Constitutional Court to challenge the judgment that was delivered in January this year by the Competition Appeal Court in favour of 18 of the 23 banks.

“Where we as a commission, we have approached the Constitutional Court following the judgment of the Competition Appeal Court for leave to appeal this judgment in respect of the 18 banks.

“We have done that for two main reasons. One, is that what this case has highlighted is that there is clarity required on jurisdiction of the national competition authority like ours in relation to global cartels,” said Tsepe.

She said there were many global cartels who operate outside the borders of South Africa but whose conduct has a direct impact on South Africa.

“We need clarity on the Competition Commission and the Competition Tribunal in enforcing cartel conduct at a global nature,” she said.

“The second one, which is not just a cartel matter, but impacts on our enforcement capacity generally, is to require clarity on when exactly presentation of evidence is required from the commission; whether it is at a moment of referral, which is a pleading stage or whether at a trial stage, in litigation proceedings more broadly. From our point of view, we believe it is necessary to get this clarity from the highest court in the land to deal with our enforcement.”

They were waiting to hear from the Constitutional Court since they filed their application against the judgment of the Competition Appeal Court.

She said other than these banks that are still in court, the five other banks agreed to give evidence against them.

Tsepe said the Constitutional Court will have to decide on the case now.

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