Competition Commission of South Africa v Bank of America Merrill Lynch International Limited and Others

The Competition Commission initiated a complaint against numerous local and foreign banks alleging collusion to fix prices and divide markets in respect of the USD/ZAR foreign exchange rate, contravening s 4(1)(b)(i) and (ii) of the Competition Act 89 of 1998. The alleged conduct largely occurred outside South Africa and involved banks that were either ‘local peregrini’ (having some presence in South Africa) or ‘pure peregrini’ (neither domiciled nor carrying on business in South Africa). The Commission’s referral was procedurally fragmented, involving multiple supplementary affidavits, shifting theories of conspiracy, and an attempt to join additional foreign banks late in the process. The Competition Tribunal held it lacked personal jurisdiction over pure peregrini but nevertheless issued a limited declaratory order against them, while requiring the Commission to re‑plead its case against local peregrini. Several banks appealed, and the Commission cross‑appealed on the jurisdictional findings.

The appeal by the pure peregrini banks was upheld. The limited declaratory order issued by the Competition Tribunal against the pure peregrini was set aside. The Competition Commission’s cross‑appeal on jurisdiction was dismissed. Consequential relief relating to joinder and review applications fell away.

The case is a leading South African authority on the limits of extraterritorial enforcement of competition law. It clarifies that while the Competition Act has extraterritorial reach based on effects within South Africa, this does not abolish the requirement of personal jurisdiction over foreign respondents. The judgment delineates the boundary between subject‑matter jurisdiction under s 3(1) and personal jurisdiction under the common law, reinforcing constitutional and international comity constraints on competition enforcement.