Competition Commission of South Africa v Bank of America Merrill Lynch International Designated Activity Company and Others

The Competition Commission alleged that 28 local and foreign banks colluded in a single overarching conspiracy (SOC) to manipulate the USD/ZAR foreign exchange rate between approximately September 2007 and September 2013. The alleged conduct involved price fixing and market division in contravention of s 4(1)(b)(i) and (ii) of the Competition Act 89 of 1998. The Commission relied on extensive communications between traders via Bloomberg chatrooms, unusual and consistent pricing behaviour, and coordinated conduct in trading the USD/ZAR currency pair. The litigation followed a protracted procedural history, including an initial referral in 2017, extensive exceptions, a 2019 Tribunal decision raising jurisdictional defects, and a 2020 Competition Appeal Court order granting the Commission a final opportunity to file a legally coherent referral affidavit addressing personal and subject-matter jurisdiction. The present appeal arose from the Competition Tribunal’s March 2023 decision on exceptions and dismissal applications directed at the 2020 referral affidavit.

The final dispositive order of the Competition Appeal Court in this appeal is not contained in the provided portion of the judgment text and therefore cannot be determined.

This case is significant for South African competition law as it addresses the limits of cartel enforcement in cross-border contexts, the application of s 3(1) of the Competition Act to foreign firms, and the pleading requirements for alleging a single overarching conspiracy. It underscores judicial concern about balancing effective cartel enforcement against regulatory overreach and affirms the importance of procedural discipline when the Competition Commission invokes extraterritorial jurisdiction.