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 between approximately September 2007 and September 2013 to manipulate the USD/ZAR foreign exchange rate. The alleged conduct involved price fixing and market division through coordinated trading strategies and extensive communication between traders via Bloomberg chatrooms. The Commission contended that this conduct constituted a single overarching conspiracy (SOC) in contravention of section 4(1)(b)(i) and (ii) of the Competition Act 89 of 1998, and that it had a direct, immediate, and substantial effect within South Africa. The matter followed a long procedural history, including an initial referral in 2017, a Competition Tribunal decision in 2019 raising jurisdictional and pleading deficiencies, and a 2020 Competition Appeal Court judgment granting the Commission a final opportunity to file a legally coherent referral affidavit. The Commission filed a new referral affidavit in June 2020, which again attracted exceptions and dismissal applications by the respondent banks, leading to the present appeal against the Tribunal’s 2023 order.

The appeal concerned the validity of the Tribunal’s handling of the exceptions and dismissal applications against the Commission’s 2020 referral affidavit; the Court reaffirmed that the Commission was confined to the parameters set by the 2020 order and could not expand the case beyond the named respondents. (The precise dispositive order of this judgment is not fully set out in the provided extract.)

This case is significant for clarifying the limits of cartel prosecution under South African competition law, particularly regarding foreign firms. It reinforces strict pleading requirements for cartel cases, the concept of a single overarching conspiracy, and the circumstances under which South African competition authorities may assert jurisdiction over foreign entities whose conduct allegedly has effects within the Republic.