Standard Bank’s attempts to obtain and review evidence gathered against it in relation to charges of currency manipulation and collusion have been turned down by the Constitutional Court.

In a split decision it ruled on Friday that the bank, as a litigant to the complaint, could have access to the evidence collected by the Competition Commission only after it had formally responded to the charges brought against it.

Business Day notes the decision means that the bank will be prevented from arguing that it should not be included for lack of evidence in the charges brought against 22 other banks and will have to participate for the full duration of the process.

The commission brought charges of currency manipulation involving the rand and other currency pairs by a group of 23 banks in 2017, accusing them of price-fixing in the foreign exchange market through collusive behaviour that conspired to manipulate prices through improper communication between traders.

The investigation forms part of efforts by authorities around the world to crack down on collusion and the rigging of prices for financial instruments.

The commission stated: ‘The Constitutional Court has now clarified that the rights of a litigant in Competition Tribunal proceedings are limited, in the same manner as litigants in the High Courts, when it comes to access to the record.’

The case was referred to the Constitutional Court by the commission following a decision by the Competition Appeal Court. The fundamental question the Constitutional Court considered was whether companies that have been referred to the commission can request the record of investigation from the watchdog before they have filed a response to the complaints brought against them, notes Business Day.

The majority view in the Constitutional Court was that the tribunal rules did not envisage production and discovery of documents before the close of pleadings, meaning Standard could have access to the records, but not until it had pleaded its case.

The commission’s lawyer, Tembeka Ngcukaitobi, previously said that allowing the bank premature access could enable Standard Bank to hold back information it realises was not part of the commission’s investigation.

In comment that reveals the degree of hostility and contempt that has characterised the matter between the competition body and the banks, the commission stated in its release that it is ‘pleased with the court’s judgment that bemoaned the respondent’s tendency to attempt to avoid and evade responsibility by embarking on a "Stalingrad" method of litigation’.

Standard Bank now has 20 days to file its response with the commission.

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