Rand-rigging probe found lacking; redraft ordered

South Africa’s Competition Tribunal has ordered antitrust investigators to rewrite charges of currency manipulation against banks, drawing out a legal battle four years in the making.

While rejecting bids from lenders to have the case dismissed, the Tribunal found deficiencies in referrals prepared by the Competition Commission and gave the body 40 days to redraft its accusations.

“The commission would still need to allege that the conduct of the respondent banks had an effect in South Africa,” the Pretoria-based Tribunal said in an emailed statement on Wednesday. It should also confine its case against the lenders “to one of a single over-arching conspiracy” while “providing more detail on such a conspiracy.”

Read: CompCom gets upper hand in forex rigging case

The order is the latest chapter in a saga that started in May 2015, when the commission alleged that firms including JPMorgan Chase & Co., BNP Paribas, Bank of Merrill Lynch, Investec, Standard Bank and Standard Chartered colluded to rig the value of the rand against the dollar. The inquiry followed a global probe into manipulation of the currency market that began in the UK two years earlier. The commission eventually named 23 banks through three additional supplements to its original referral to the Tribunal.

Foreign jurisdiction

The Tribunal, which adjudicates antitrust cases like a court, also said it doesn’t have the jurisdiction to extract penalties out of banks with no presence in South Africa, while any fines will be limited to a percentage of the revenue of the representative unit in the country.

There have been accusations of errors of process on both sides. In filings in May 2017, HSBC Holdings and Investec said the commission named the wrong legal entities in its allegations. Standard Bank’s South African unit, Bank of America Merrill Lynch International and Standard New York Securities all said the traders the commission accused of manipulation on their behalf had either never worked for them or never traded the rand.

Citigroup agreed in January 2017 to pay a R69.5 million fine for its alleged role in manipulating the rand, while Barclays Africa, which has since been renamed Absa, may be exempt from a penalty because it blew the whistle on the traders’ alleged actions. Nomura International, Commerzbank, Macquarie Group, Australia & New Zealand Banking Group and Commerzbank were also identified in the probe.

“The Tribunal found that the deficiency in the commission’s pleading was located in its unwillingness to commit itself unequivocally to a particular formulation of its case,” the authority said. This “caused a lack of focus and consistency throughout the various iterations contained in the referral and subsequent supplementary documents.”