Judge Davis to decide Standard Bank 'forex' appeal against commission

Judge Dennis Davis.
Judge Dennis Davis.

Cape Town - The Competition Appeal Court (CAC) heard arguments on an appeal by Standard Bank to a decision by the Competition Tribunal that the bank is not yet entitled to have access to the commission's investigation record in a case in which 18 banks are respondents.

The matter relates to the so-called forex case in which the 18 banks are accused of being involved in global price-fixing and market division in terms of currency trading - including the rand.

The matter was heard in the Western Cape High Court on Wednesday by a panel of three judges, led by Judge Dennis Davis.

In September 2017 Standard Bank requested the tribunal to compel the commission to hand over its record of investigation. It applied in terms of the commission's rules of procedure, which allows any person access to the record of investigation.

The tribunal agreed with the commission's argument that the bank was not allowed to gain access to the record of investigation via this route, as it was a litigant in the matter and should wait until the discovery phase during the pre-trial proceedings - in other words until after the close of pleading.

Exception hearings by the tribunal must still take place and the banks still have to file their answering affidavits to the commission's founding affidavit.

Advocate Arnold Subel SC, on behalf of Standard Bank, argued that being a litigant in a matter does not take away the unqualified right of public access to the record of investigation in terms of the Competition Commission procedure rules.

He does not agree with the commission's argument that restrictions in terms of the Promotion of Access to Information Act (PAIA) can be relied upon by the Commission to withhold access to its record of investigation prior to the discovery phase of the trial.

"The Commission is not there to keep secrets. Its records should be public, and it should be no different if you are a litigant in a matter," said Subel.

He pointed out that Standard Bank found no wrong-doing in its initial internal inquiry into the allegations and wants specific details from the Commission about its alleged misconduct.

Adv Tembeka Ngcukaitobi (left) appeared for the Competition Commission, while Standard Bank was represented by Adv Arnold Subel SC (middle) and Adv Greta Engelbrecht. (Photo: Carin Smith, Fin24)

Adv Tembeka Ngcukaitobi, on behalf of the Commission, argued that the bank wants access to the information at this stage in order to know how to plead later.

In his view, the Commission's record of investigation should be deemed as restricted to the bank at this stage and will be available in a reasonable time during the discovery phase.

Ngcukaitobi repeatedly argued that, in his view, Standard Bank merely wants to gain access to the information at this stage to see what evidence the Commission has against it and to be able to adjust its plea. In his view this amounts to abuse of the process.

"We all know games are being played. Standard Bank wants the information to prepare its defence and to understand the details of the case against them," said Ngcukaitobi.

He argued that withholding such information at this stage is especially important when the Commission is entering the "secret world" of investigating cartel activities so that cartel members cannot "hide their tracks".

He further argued that, by allowing the bank access to the information at this point would prevent the bank from "coming clean on all incidents of collusion".

To this Subel responded that not one of the respondent banks in the "forex case" pleaded yet. He said there have been a lot of delays on the part of the Commission and it has not yet disclosed any of its complaints.

"Standard Bank has found nothing wrong (in its internal investigation). The Commission is merely poking around. We have not been presented any record of investigation for over a year now. The Commission has failed to articulate its case. Standard Bank is not 'playing games'. It is rather a case of abuse by the Commission by referring the matter to the Tribunal prematurely," argued Subel.

He emphasised that the role of the Commission is not an adversarial one like in private litigation.

"In an era of great transparency, the record of investigation should be made available by the Commission. Failing to do so would violate a litigant's Constitutional rights as members of the public and the Constitutional imperative of transparency," said Subel.

"This is a highly sensitive case with 18 banks as respondents. It takes time and resources to handle. The Commission has not given any indication of how long the matter will take and no word on what the state of its record of investigation is. We suspect they have nothing."

The judges will now deliberate the merits of Standard Bank’s application. No indication was given as to when judgment could be expected.

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