The commission is a statutory body that investigates uncompetitive behaviour, while the tribunal adjudicates cases and hears appeals.
In a stinging rebuke of the commission, the tribunal said the watchdog’s case had “suffered a lack of focus” and it would have to file a new referral affidavit and confine the case against the implicated banks to a single over-arching conspiracy.
“This is not to hold in general that the commission cannot make out a case in the alternative. Indeed, ordinarily we would avoid making directions that constrain the commission’s prosecutorial discretion to formulate its charges in the manner it considers best,” the tribunal said.
“But we also have a duty to ensure that the tribunal proceedings are fair. When the formulation of a case in the alternative makes the case confusing for the respondents, as we have found it does, and when after being given a chance to re-formulate the case the commission’s efforts have still not added further clarity, the fairness requires that we should intervene.”
However, the more than 15 banks, which include Standard Bank and Investec, lost a bigger battle to have charges against them withdrawn after the tribunal flatly refused their application to have the referral against them dismissed.
In 2017, the commission recommended the prosecution of nearly 20 top local and international banks for collusion in the trading of foreign currency.
The watchdog has claimed that it had found that the banks had entered into agreements to collude on prices for bids, offers and bid-offer spreads for spot trades in relation to the US dollar/rand currency pair since 2007.
The commission had requested the tribunal to take 10percent of 14 of the 17 implicated banks’ annual turnover as a penalty.
Absa is among the three banks that have admitted guilt in colluding on USdollar trades. US-based Citibank has been fined close to R70million after it also admitted guilt and agreed to provide the anti-graft agency with evidence implicating the other banks.
The matter has since been held up in pre-trial stage.
The commission’s spokesperson, Sipho Ngwema, said the regulator was pleased to note that the tribunal had rejected the applications of the banks that the matter be dismissed.
“The commission is happy that the Competition Tribunal has released the long-awaited decision with regards to the legal technical challenges of the banks in the currency manipulation matter,” Ngwema said.
“This important step takes us closer to the banks to respond and attend to the merits of the case. Considering that this is quite a lengthy judgment, we are currently studying it and will respond in full once we have applied our mind to the contents.”
Investec and Standard Bank did not respond to questions, while the other banks could not be reached.