After more than a decade of litigation over the Competition Commission’s allegations that local and international banks colluded to manipulate the rand, the Constitutional Court has delivered a judgment that largely leaves intact the Competition Appeal Court’s decision that significantly reduced the number of banks remaining before the Competition Tribunal.
In a unanimous judgment written by Justice Owen Rogers, the Court upheld the Competition Commission’s appeal in relation to JPMorgan Chase Bank N.A. and Standard Americas Incorporated, upheld Credit Suisse Securities (USA) LLC’s appeal against its joinder, dismissed HSBC Bank plc’s cross-appeal, and refused BNP Paribas leave to appeal.
The judgment, handed down on 30 June 2026, does not determine whether banks manipulated the US dollar/South African rand (USD/ZAR) exchange rate or whether any respondent contravened the Competition Act.
Instead, it resolves a number of legal disputes that have dominated the litigation for years, including the consequences of an earlier Competition Appeal Court (CAC) judgment, the standard required when pleading a complex cartel case, the Competition Tribunal’s approach to exceptions, the joinder of additional respondents, and the requirements for pleading a single overarching conspiracy.
Its immediate effect is to determine which banks remain before the Competition Tribunal.
The Commission succeeded in restoring its case against JPMorgan Chase Bank N.A. and in preserving Standard Americas Incorporated as a respondent. But it failed to revive its case against several other banks, including Standard Bank, Nedbank, and FirstRand Bank.
Procedural and jurisdictional disputes
The litigation began in April 2015 when the Competition Commission initiated a complaint alleging that a number of South African and international banks had colluded to manipulate the USD/ZAR exchange rate between 2007 and at least September 2013.
The Commission referred the complaint to the Competition Tribunal in February 2017.
The merits of the alleged forex cartel, however, have never been adjudicated. Instead, the litigation has been dominated by disputes over whether the Commission’s referral adequately pleaded its case, whether the Tribunal had jurisdiction over various foreign banks, whether additional respondents could be joined after the referral had been made, and whether the Commission has sufficiently alleged that the various banks participated in what it described as a single overarching conspiracy.
Before reaching the Constitutional Court, the matter had produced two Competition Tribunal decisions and two CAC judgments. Those earlier decisions established much of the legal framework within which the Constitutional Court had to determine the present appeals.
What the Constitutional Court had to decide
The Constitutional Court considered three applications for leave to appeal and one application for leave to cross-appeal arising from the CAC’s January 2024 judgment (referred to as CAC II).
The Competition Commission sought to revive its case against a number of respondents, while BNP Paribas and Credit Suisse Securities challenged different aspects of CAC II. HSBC Bank plc brought the cross-appeal.
CAC I remains the foundation of the litigation
One of the Commission’s principal arguments was that the Constitutional Court should reconsider the CAC’s interpretation of section 3(1) of the Competition Act in its 2020 judgment (CAC I).
Section 3(1) applies the Competition Act to economic activity “within or having an effect within” South Africa.
In CAC I, the CAC held that section 3(1) did not eliminate the need to establish personal jurisdiction over foreign respondents. Instead, it held that personal jurisdiction over foreign firms with no presence in South Africa (pure peregrini) required the Commission to establish adequate connecting factors linking the foreign respondent to the Tribunal’s jurisdiction (the ACF test), while subject-matter jurisdiction depended on the qualified effects (QE) test – namely whether it was foreseeable that the alleged conduct would have a direct or immediate and substantial effect in South Africa. Those two tests became the framework within which the Commission was required to redraft its referral affidavit.
The Constitutional Court declined to revisit that framework. It emphasised that it was not deciding whether CAC I was correct on the merits. The Commission had not appealed CAC I, had redrafted its referral affidavit based on that judgment, and was therefore barred by peremption and res judicata from re-opening the issue. In any event, the appeal before the Constitutional Court was against CAC II; the correctness of CAC I’s interpretation of section 3(1) was not properly before it.
Accordingly, the legal framework established in CAC I continued to govern the issues before the Constitutional Court.
Guidance on pleading and exceptions
Although much of the judgment concerns the facts relating to individual banks, it also provides broader guidance on pleading standards in Competition Tribunal proceedings.
The Constitutional Court endorsed the Tribunal’s generally flexible approach to exceptions while articulating the test that should ordinarily be applied when considering exceptions to referral affidavits.
Assuming that the facts pleaded in the Commission’s referral affidavit are ultimately proved, could the Tribunal reasonably conclude that the Commission has established a case for the relief it seeks?
The Court noted that Competition Tribunal referral proceedings differ from ordinary civil litigation. Referral affidavits perform a dual function: they identify the Commission’s cause of action while also setting out the material facts upon which it relies.
Competition proceedings also combine features of motion proceedings and trial proceedings and are conducted before a specialist tribunal with inquisitorial powers, making them materially different from ordinary civil litigation.
Joinder after referral
The Commission also succeeded on an important procedural question concerning the joinder of additional respondents.
The CAC had concluded that its earlier judgment prevented the Commission from joining further banks after the complaint had already been referred to the Tribunal.
The Constitutional Court disagreed. It held that CAC I had not prohibited later joinder. Rather, it had required the Commission to provide greater particularity in its revised referral affidavit.
The Court also rejected the argument that the Commission was required to initiate a fresh complaint before joining additional respondents.
An initiation under the Competition Act, it held, is directed at the prohibited practice under investigation rather than at a particular firm. A firm may not even know that it is implicated until the matter reaches the referral stage. Accordingly, the absence of a fresh initiation did not prevent the Commission from seeking to join additional respondents such as Nedbank, Standard Americas, and Credit Suisse.
The Court emphasised that CAC I had required greater particularity in the Commission’s referral, not a new complaint whenever additional respondents were identified.
The Commission’s 13 alleged legal errors
At the Court’s request, the Commission identified 13 alleged legal errors that it said the CAC had committed.
The Constitutional Court rejected most of the Commission’s alleged legal errors, repeatedly distinguishing between genuine errors of law and disagreements with the CAC’s assessment of the pleaded facts.
For example, the Constitutional Court rejected the Commission’s arguments that the CAC had created new legal requirements concerning the regularity of communications between alleged conspirators, participation in chatrooms, the identification of individual traders, or the significance of conduct evidence, including conduct observed on the Reuters trading platform.
Properly understood, the Court held, those aspects of the CAC’s judgment reflected factual assessments of the pleaded evidence in the particular case rather than statements of general legal principle.
Similarly, the Court rejected the Commission’s contention that the CAC had conflated the requirements for pleading a single overarching conspiracy with the requirements for establishing personal jurisdiction. In several instances, the Commission’s criticisms amounted to disagreements with the CAC’s assessment of the pleaded facts rather than demonstrations that it had misdirected itself in law.
The single overarching conspiracy
A substantial portion of the judgment examines the Commission’s allegation that the respondents participated in a single overarching conspiracy.
The Constitutional Court accepted that whether the Commission had sufficiently pleaded participation in a single overarching conspiracy had to be assessed in accordance with the legal principles identified in earlier authorities and rejected most of the Commission’s criticisms of the CAC’s application of those principles.
The Court also explained that the CAC’s reference to foreign banks having “entered into business with South African banks” was not intended to create a new legal test. Rather, it was a way of expressing the requirement that, to establish personal jurisdiction over pure peregrini under the framework established in CAC I, the Commission had to plead that those foreign banks participated in a single overarching conspiracy that also included South African banks.
Where the Competition Appeal Court erred
Although the Constitutional Court rejected most of the Commission’s complaints, it found material errors in relation to JPM Bank and in the CAC’s approach to post-referral joinder, which affected Standard Americas Incorporated.
The Commission had pleaded that JPM Bank maintained a Johannesburg branch, was authorised to conduct foreign exchange business in South Africa, and allegedly participated in a single overarching conspiracy involving South African banks.
The Constitutional Court held that, for purposes of subject-matter jurisdiction, the CAC had imposed an additional requirement not found in CAC I by requiring the Commission to plead that its alleged single overarching conspiracy claim against JPM Bank arose from business conducted through the Johannesburg branch.
Importantly, however, the Court did not decide the broader question whether the mere existence of a South African branch, irrespective of its connection to the impugned conduct, will always suffice to establish jurisdiction.
The Court also found that the CAC had erred in relation to Standard Americas Incorporated. Having concluded that CAC I did not prohibit post-referral joinder and that no fresh initiation was required, the Constitutional Court restored the Tribunal’s decision allowing Standard Americas Incorporated to remain a respondent.
Why Credit Suisse Securities succeeded
The outcome in respect of Credit Suisse Securities illustrates that the Court’s ruling on joinder was not, by itself, sufficient to preserve every late-joined respondent.
Credit Suisse succeeded in its own appeal, and the Constitutional Court replaced the CAC’s order with one dismissing the Commission’s joinder application in relation to CSS.
That result did not contradict the Court’s broader ruling that post-referral joinder is permissible and does not require a fresh initiation. In other words, Credit Suisse did not succeed because post-referral joinder was impermissible. It succeeded because the Commission’s pleaded case against Credit Suisse did not satisfy the jurisdictional and pleading framework established in CAC I.
The remaining appeals
The Court also dismissed the Commission’s appeal in relation to a number of other respondents, leaving the CAC’s judgment undisturbed in those respects.
The Court dismissed HSBC Bank plc’s cross-appeal. It also refused BNP Paribas leave to appeal, holding that its application lacked sufficient substance to justify granting leave.
Which banks remain before the Tribunal?
The practical effect of the judgment is that, at the pleading stage, the Commission’s single overarching conspiracy case may proceed against:
- BNP Paribas;
- JPMorgan Chase & Co;
- JPMorgan Chase Bank N.A.;
- Investec;
- HSBC Bank plc; and
- Standard Americas Incorporated.
Investec remains an active respondent because it did not participate in the procedural challenges brought by many of the other banks.
The pleaded conspiracy also continues to include Standard Chartered Bank, Citibank, Absa, and Barclays, although those institutions are no longer active respondents because they settled with the Commission or received corporate leniency.
The Commission was unsuccessful in reviving its case against Bank of America Europe DAC, Australia and New Zealand Banking Group, Standard Bank of South Africa, Nomura, Commerzbank, Macquarie, HSBC Bank USA N.A., Merrill Lynch Pierce Fenner & Smith Incorporated, Bank of America N.A., Nedbank, and FirstRand Bank. In those respects, the CAC’s judgment remains undisturbed.
What happens next
The Constitutional Court’s judgment does not determine whether the alleged forex cartel existed. It does not decide whether any respondent manipulated the rand, contravened the Competition Act, or is liable to any penalty. Nor does it endorse or reject, on the merits, CAC I’s interpretation of section 3(1) of the Competition Act.
The result is that the Commission’s case continues but in a substantially narrower form than originally envisaged. The Competition Tribunal must still determine, after hearing evidence, whether the Commission can prove the alleged single overarching conspiracy against the remaining respondents. For the first time since the Commission referred the complaint in 2017, the litigation can now move beyond procedural disputes towards the hearing of evidence against the remaining respondents.
Click here to download the judgment.
