While Standard Bank accused the Competition Commission of “sticking to its bloody-minded ignorance” by continuing to accuse the bank of allegedly being part of a cartel which manipulated the Rand/US dollar exchange, the commission had hit back to say the bank is pulling out all the stops in a bid not to face the music.

Advocate Kate Hofmeyr, acting for Standard Bank, told the Constitutional Court this week that in 2017, when the commission told the media about its allegations that the banks were allegedly involved in an international cartel colluding to manipulate the Rand/US dollar, Standard Bank’s share price dropped in a few days by 3.8%, which equated to R8.5bn.

She argued that while the commission was investigating the case for a year and a half, it did not meet with Standard Bank at all to obtain information from it regarding the matter. Hofmeyr said because there was no proper investigation by the commission, it got its facts wrong. In turn, Standard Bank suffered reputational damages while these allegations are hanging over its head.

She told the apex court that Standard Bank should not face the music and be subjected to a trial on the merits of the alleged Rand rigging issue, as it is not involved in the matter.

The commission turned to the Constitutional Court to appeal the judgment of the Competition Appeal Court (CAC) issued last year, in which it found that the majority of the banks do not have to face a trial on the merits of the allegations.

Local banks which form part of the appeal as respondents, together with various international banks, are Standard Bank, FirstRand Bank and Nedbank.

In his rebuttal on Thursday following Standard Bank’s submissions, Advocate Thembeka Ngcukaitobi, acting for the commission, argued that of all the respondent banks, Standard Bank is the most aggressive litigant.

He said this matter has been running for the past 10 years because of procedural objections from the respondents, of which Standard Bank is the forerunner. “We are subjected to protracted legal challenges by this bank, which pleads innocence.”  

Ngcukaitobi said while banks, such as Standard Bank had the financial resources to resort to these legal challenges, the commission did not have the same money to face these powerful entities. 

He accused the bank of frustrating the administration of justice in this matter.

Ngcukaitobi said Standard Bank claimed that it did its own investigation into the allegations that there was a single overreaching conspiracy to manipulate the Rand/US dollar exchange.

“But they never told us what they found”.  He argued that it would be irresponsible of the commission to simply not include Standard Bank in its referral to the tribunal simply because the bank said it is not part of the collusion.

Three of the banks which lost their cases before the CAC – BNP, CSS and HBEU – meanwhile  also appealed that ruling before the apex court.

BNP submits that the CAC erred in dismissing its exception and argued that the commission’s referral is contradictory, vague and embarrassing. It said that requiring it to answer to the allegations, violates its right to a fair hearing. 

CSS in turn argued that the commission never initiated a complaint against it, rendering its joinder unlawful and beyond the tribunal’s jurisdiction. It also argued that the commission did not have jurisdiction over it as it does not have South African ties. 

The respondent banks that succeeded in the CAC meanwhile support that court’s findings. They submitted that the commission has not pleaded sufficient facts to sustain a case against them, that the referral affidavit improperly conflates legal entities, and that the evidence relied upon is speculative and inconsistent with the required elements of a single overreaching conspiracy.

zelda.venter@inl.co.za

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