The lone SA bank that remains in the Competition Commission’s rand manipulation case insists it did nothing wrong and will go to trial to defend itself.
The eight-year-old case all but collapsed on Monday when the competition appeal court (CAC) dismissed the case against all except five of the 28 banks the commission had alleged were in a “single overarching conspiracy” to fix the rand-dollar exchange rate in the New York market more than a decade ago.
The remaining five include four foreign banks, which were implicated by the US department of justice in 2015, and Investec. Investec did not join the other banks when they went to the competition appeal court to stop the case going to trial on the grounds that the commission’s case failed to pass legal muster.
An Investec spokesperson said on Tuesday that Investec did not participate in the interlocutory applications to the competition appeal court and “remains ready and willing to present its case when the merits of the new referral are finally heard in the Competition Tribunal”.
The case has been the subject of long and tortuous litigation since the commission charged the banks with colluding to fix the rand in online chat rooms in the New York foreign exchange market in 2007-13. The Competition Tribunal found in 2019 that the commission had failed to make an adequate case and instructed it to file a new referral, which the banks again challenged, taking this to the CAC in 2023 when the tribunal decided to proceed with the case despite the commission’s failure to address key flaws in its case.
The CAC on Monday found that the commission had no evidence, or no jurisdiction, against most of the banks, leaving only JPMorgan Chase, BNP Paribas, HSBC, Credit Suisse and Investec.
Investec noted that the commission in its new referral “concedes that neither Investec, nor any other SA bank, has been implicated in the reported Bloomberg chat rooms that were set up by certain foreign exchange traders at the various implicated international banks”.
Competition Commission spokesperson Siyabulela Makunga said in a statement on Tuesday that the commission was still studying the CAC judgment and would in due course communicate its next course of action.
Nedbank on Tuesday welcomed the CAC’s decision to dismiss the case against the bank and its holding company Nedbank Group. “As a result of our own internal investigations into this matter and our reviews of the Competition Commission allegations we have always maintained that there was no evidence against Nedbank or our traders participating in any of the chat rooms or being involved in any so-called ‘overarching conspiracy’ to fix the rand exchange rate,” said Nedbank.
Standard and FirstRand earlier welcomed the CAC’s decision to dismiss the case against them. The CAC ruling said the Competition Commission’s case against Standard did not even get out of the legal starting blocks and that FirstRand should never have been included by the commission, which joined FirstRand, Nedbank and several foreign banks to the case only long after it launched it in 2015.
First Rand said: “We have consistently been of the view that FirstRand had no case to answer and now the competition appeal court has confirmed that view.”
Some of the banks had applied to the commission for leniency or reached settlements since 2015 and are therefore no longer being prosecuted, in return for providing the commission with evidence. They include Absa and its then parent Barclays, which was one of the global banks implicated by the US department of justice, as well as Standard Chartered, which reached a R42m settlement with the commission during the CAC hearings in November.
Lawyers said the dearth of evidence in the commission’s case was telling, given that it had access to the evidence provided by these banks as well as to the US department of justice files.
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