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

The Competition Commission referred a complaint against 28 local and foreign banks alleging that, between September 2007 and at least September 2013, they colluded to manipulate the USD/ZAR foreign exchange rate. The alleged conduct included price fixing and market division in contravention of s 4(1)(b)(i) and (ii) of the Competition Act 89 of 1998. The Commission alleged that traders employed by the respondent banks coordinated through Bloomberg chatrooms, acting as active or passive participants in a single overarching conspiracy (SOC) to distort normal competitive conditions in the USD/ZAR market. The matter followed a protracted procedural history involving an initial referral in 2017, extensive exceptions, a 2019 Competition Tribunal decision questioning jurisdiction, and a 2020 Competition Appeal Court order granting the Commission a final opportunity to file a legally coherent referral affidavit addressing jurisdiction and confining the case to a SOC. The Commission filed a new referral affidavit in June 2020, which again prompted exceptions and dismissal applications, leading to the present appeal against the Tribunal’s 2023 order.

The final dispositive order of the Competition Appeal Court in this judgment is not contained in the provided text. As a result, the precise outcome of the appeal (whether upheld, dismissed, or remitted) cannot be determined from the extract.

This case is significant for South African competition law as it addresses the limits of cartel enforcement in complex, cross-border markets such as foreign exchange trading. It clarifies the stringent pleading requirements imposed on the Competition Commission when alleging a single overarching conspiracy, particularly in relation to foreign firms. The judgment also develops South African jurisprudence on personal and subject-matter jurisdiction over foreign peregrini in cartel cases and cautions against regulatory overreach while recognising the seriousness of cartel conduct.