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

The Competition Commission alleged that 28 banks (including South African and foreign banks) colluded to manipulate the USD/ZAR foreign exchange rate from September 2007 to at least September 2013. The Commission alleged a single overarching conspiracy (SOC) to fix prices and divide markets through traders communicating via Bloomberg chatrooms ("Old Gits" and "ZAR" chatrooms primarily). The case had a lengthy procedural history: initial referral in February 2017, Competition Tribunal decision in June 2019, Competition Appeal Court decision in February 2020 giving the Commission a "final opportunity" to file a new referral affidavit, which was filed in June 2020. The Tribunal decision under appeal was delivered on 30 March 2023 after hearings in late 2021. Several banks challenged the Tribunal's jurisdiction (personal and subject matter), compliance with the 2020 order, and alleged vague and embarrassing pleadings.

• Whether the Tribunal's order was appealable (final decision vs. exception dismissal)
• Whether the Commission complied with the 2020 CAC order requiring a reconfigured referral affidavit
• Whether additional respondent banks could be joined after the initial referral to the Tribunal
• Whether holding companies could be joined as respondents when they did not trade in forex
• Whether the Commission established personal jurisdiction over pure peregrini (foreign banks with no SA presence)
• Whether the Commission established subject matter jurisdiction under s 3(1) of the Competition Act
• Whether the referral affidavit sufficiently pleaded a single overarching conspiracy (SOC) meeting the requirements from EU jurisprudence (common objective, intentional contribution, knowledge)
• Whether specific banks' conduct satisfied the SOC requirements
• Whether referral affidavit was vague and embarrassing under Tribunal Rule 15(2)

Appeals upheld in part. The Tribunal's order of 30 March 2023 was set aside in respect of: first respondent (BAMLI), fourth respondent (JP Morgan Chase Bank), fifth respondent (ANZL), sixth respondent (SNYS), ninth respondent (Nomura), eleventh respondent (Credit Suisse Group), twelfth respondent (Commerz Bank), thirteenth respondent (Macquarie), nineteenth respondent (HSBC USA), twenty-first respondent (BANA), twenty-fourth respondent (Nedbank Group), twenty-fifth respondent (Nedbank Ltd), twenty-sixth respondent (FirstRand Ltd), twenty-seventh respondent (FirstRand Bank Ltd), and twenty-eighth respondent (Standard Americas Inc). Appeals dismissed in respect of: second respondent (BNP Paribas), third respondent (JP Morgan Chase & Co), fourteenth respondent (HSBC Bank PLC), and twenty-third respondent (Credit Suisse Securities), who must file answering affidavits within 40 days. No order as to costs.

To establish personal jurisdiction over pure peregrini banks in a cartel case, the Commission must plead adequate connecting factors showing the foreign bank's participation in a conspiracy with South African banks, not merely participation in related conduct - occasional chatroom participation without demonstrated links to SA banks is insufficient. A single overarching conspiracy requires pleading: (1) a common anti-competitive objective, (2) each firm's intentional contribution to common objectives, and (3) that each firm knew or could reasonably foresee the overall conduct and was prepared to take the risk. The 2020 CAC order permitting the Commission a "final opportunity" to file a new referral affidavit applied only to parties already referred to the Tribunal, not new parties. Holding companies cannot be joined solely based on subsidiary relationships absent evidence of their own involvement in the impugned conduct. Personal jurisdiction and subject matter jurisdiction under s 3(1) are distinct requirements that must both be established for pure peregrini.

The Court commented that cartel conduct is "the most egregious form of anti-competitive conduct" but emphasized this does not reduce the burden on the Commission to plead its case properly. The Court noted the "torturous" litigation history and emphasized that expedition in resolving jurisdictional disputes is important given the lengthy trials and reputational consequences involved. The Court criticized the Tribunal's conflation of personal and subject matter jurisdiction. The Court noted that information available on public platforms like Reuters must be distinguished from commercially sensitive information shared privately. The Court observed that the Commission, having access to evidence from Jason Katz's US Department of Justice proceedings and from Absa's leniency application (Duncan Howes), should have been able to plead its case with greater specificity. The Court expressed regret that TWK Agriculture Holdings (SCA 2023) failed to apply the Constitutional Court's binding Lubashe decision on the "interests of justice" test for appealability.

This judgment is significant for South African competition law as it: (1) clarifies the requirements for establishing personal jurisdiction over foreign entities in cartel cases in the digital economy; (2) interprets and applies the strict requirements for pleading a "single overarching conspiracy" derived from EU competition law; (3) emphasizes the distinction between personal and subject matter jurisdiction under the Competition Act; (4) clarifies that the Commission cannot add new respondents after referral to the Tribunal (only before referral); (5) applies the Constitutional Court's "interests of justice" test for appealability (from UDM v Lubashe) rather than the strict common law Zweni test; (6) establishes that holding companies cannot be joined solely based on parent-subsidiary relationship without evidence of their own involvement; (7) requires detailed, specific pleadings in cartel cases, particularly where jurisdiction over foreign entities is asserted; (8) demonstrates judicial willingness to scrutinize Commission pleadings strictly even in serious cartel cases, balancing anti-cartel enforcement with procedural fairness.