Due to the cryptic nature of the allegations against Nedbank by the Competition Commission that this bank was part of a conspiracy to manipulate the rand, Nedbank has no case to answer as there is not a shred of evidence regarding any wrongdoing against it.

This is according to Advocate Anthony Gotz SC, who on Wednesday told the Constitutional Court that Nedbank should never have been added as a respondent in the Competition Commission’s referral of the matter to the tribunal.

This argument follows the Competition Commission’s appeal following last year’s judgment in which the Competition Appeal Court (CAC) cleared 13 banks – including Nedbank – from facing the music in a later trial regarding the rand/US dollar manipulation saga.

Advocate Tembeka Ngcukaitobi, acting on behalf of the Competition Commission, on Monday told the Constitutional Court that there is enough evidence to establish a prima facie case that they were involved in the manipulation of the rand.

The Competition Commission, in its initial referral of the complaint to the Competition Tribunal, did not list Nedbank as one of the suspects. It, however, amended its referral in 2020 during which Nedbank was included as one of the alleged conspirators of the rigging of the rand.

Gotz said in its application to join Nedbank, the commission pleaded a broad conspiracy against the bank, but the allegations were narrow. The allegations were based solely on the commission’s assessment regarding trading data on the Reuters platform. This platform does not reflect trades – it’s a public platform which simply indicates the prices at which traders are willing to buy and sell currency, Gotz said.

According to him, the case against Nedbank is based on the commission’s assessment of trading data over six years. “This is not a case of Nedbank being a participant in any chatroom – in this respect Nedbank is different from the other respondents,” Gotz said.

He argued that the allegations against Nedbank are skeletal and there are only a few instances which lasted minutes each on the Reuters platform, on which the commission is now relying.

Gotz said these allegations are not made specifically against Nedbank, but against other banks that they had withheld quotes.

This, he argued, is definitely not enough to establish that Nedbank was part of any conspiracy to rig the rand. He questioned how it could be suggested that this bank was part of an international cartel.

Gotz also pointed out that the few instances the commission is relying on happened six months to a year apart.

“The commission cannot make allegations in the air. We accept that in cartel cases, it is difficult to identify each perpetrator, but this is not a licence for the commission to do what it has done,” he argued.

Advocate Chris Loxton, acting on behalf of the Australian and New Zealand banking group, meanwhile, argued that the commission has not pleaded sufficient facts to suggest that his clients were part of a conspiracy to manipulate the rand/US dollar.

He said the commission has not provided details as to why it is alleging these banks partook in the conspiracy and to say that their agents were in some of the chatrooms where the alleged conspiracy took place is not enough.

“It is remarkable that we are drawn, year after year, through these proceedings. It must now stop. They must let us go. This application for leave to appeal must be dismissed,” Loxton said.

Proceeding.

zelda.venter@inl.co.za

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