The Competition Commission’s ageing foreign exchange case is back in court yet again, with the banks charging that the commission must show that all 28 of them were part of the alleged ‘single overarching conspiracy’ to manipulate the rand before the case can go ahead.

Business Day report says the case, which the commission launched in 2017, goes back to alleged collusion by SA and foreign banks in the New York foreign exchange market from 2007 to 2013.

The 28 banks the commission is going after include several foreign banks with no presence in SA, as well as foreign banks with local branches and all of SA’s big domestic banking groups.

This week’s hearing at the Competition Appeal Court is the second round in a battle about whether SA’s competition authorities have the jurisdiction to prosecute or the ‘material facts’ to go ahead with it.

Former Judge President of the Competition Appeal Court Dennis Davis has been recalled to hear the case, in which the commission alleges that banks’ foreign exchange traders colluded in online chatrooms to fix the rand/dollar exchange rate.

The banks have taken this week’s case-about-the-case to court to stop the Competition Tribunal going ahead with hearing the case itself.

Though the Competition Appeal Court earlier ruled that the commission had to provide evidence on a series of issues before the case could begin, the Competition Tribunal said in March that it would hear the case.

The commission told the court yesterday that traders employed by or representing the banks logged onto Bloomberg terminals and entered chatrooms where they communicated with their competitors, shared sensitive information and agreed on rand/dollar spreads.

‘The commission alleges that the traders’ conduct … leads to the inevitable inference of the existence of a single overarching conspiracy with the clear objective of manipulating the normal competitive trading conditions of the rand/dollar currency pair,’ it said in court papers. 

The Business Day report says the commission has chosen to pursue the case on the grounds there was a single overall conspiracy between all the banks, rather than multiple smaller ones.

Banks have charged that it has no basis for its ‘one size fits all’ approach and have challenged it to provide evidence that they participated at all in the alleged cartel.

To prove a single overall conspiracy, they argue the commission would have to show that each of them interacted with all the others.

Full Business Day report