Sim Tshabalala
Sim Tshabalala
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JOHANNESBURG - The Competition Commission on Monday stopped short of calling Standard Bank arrogant for requesting the Tribunal to compel it to release its investigation records in the foreign currency exchange (forex) collusion matter, while declining to hand over its records to the bank.

The charged hearing at the Tribunal's offices was triggered by Standard Bank’s discovery application deposed with the Tribunal that accused the commission of conducting the investigation in a clandestine manner and causing harm to its reputation. Tembeka Ngcukaitobi, representing the Commission, on Monday said that it was uncalled for, for the bank to demand the Commission to avail the body of evidence it has against it.

“Standard Bank is yet to file its answering affidavit to the Commission referral yet has the nerve to come to the Tribunal and complain that the Commission is playing hide and seek in availing the record of evidence it has,” charged Ngcukaitobi. 

Also read: Standard Bank to ask tribunal to compel competition commission to provide evidence

However, counsel for Standard Bank, Greta Engelbrecht hit back at the Commission and said the anti-graft agency had “constructed reasons” in order to frustrate the process of handing over the records of its probe in the multibillion-dollar foreign exchange trade probe.

The stalemate between the Commission and the Bank means that the Tribunal chairperson and his team will now have to decide on the matter.  
Earlier this year, the Commission referred Standard Bank and 17 other local and international banks to the Tribunal for prosecution after it accused them of colluding in forex trading. Barclays Africa and Citibank have since admitted their guilt and agreed to testify against the other banks with Citibank having been fined R69 million, while no fine was preferred against Barclays Africa.   

Ahmore Burger-Smidt, a director at Werksmans Advisory Services, on Monday said that one had to consider the concept of restricted as well as confidential information in assessing the current application before the Competition Tribunal.  “One would, therefore, expect, in the interest of proper administration of justice, that respondents be granted access to information forming the basis of the prosecution.”

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“Why otherwise would the Competition Act specifically provide for a carve-out when it comes to confidential information and state that it is not a breach of confidence if this information is disclosed in order to achieve the proper administration of justice?,” Burger-Smidt said.  

The Commission last month said that it  was “no longer interested” in any settlement discussions with banks implicated in the forex scandal that broke earlier this year. The Commission is seeking an order declaring that the 17 banks are liable for the payment of an administrative penalty equal to 10 percent of their annual turnover.

- BUSINESS REPORT