Standard Bank denied access to forex case records
The Competition Tribunal rules the bank is not entitled to records in the collusion probe
Standard Bank’s efforts to obtain records of the Competition Commission’s probe into collusion among currency traders at 18 banks were thwarted on Monday after the Competition Tribunal ruled it was not entitled to such records.
Given "the length of the record, the extent of the confidential information in it and the burden it would place on the commission in preparing it, a reasonable time for production would be at the same time as discovery is made in the [foreign exchange] case", the tribunal said in a statement.
The tribunal, which heard the case on September 18, said Standard Bank had provided no reasons why it should receive a copy of the commission’s record of investigation before pleadings in the case had closed.
This will come as a blow to Standard Bank, which was seeking the evidence on which the commission relied — in alleging that two of the bank’s currency traders had colluded with peers at rival banks to fix prices on rand-to-dollar trades — before filing its answering affidavit in the case.
The tribunal’s ruling means the bank will have to plead its case without sight of the record.
The commission initially referred the collusion case to the tribunal in February. Citibank settled via a R70m fine, while Barclays plc, Barclays Capital and Absa applied for leniency.
None of the 14 remaining respondent banks that are contesting the case has yet filed answering affidavits. Instead, they have filed "exception applications", which centre on technical disputes relating to, among others, jurisdiction and insufficient information.
Standard Bank’s internal investigations had not revealed any collusion among its traders, according to CEO Sim Tshabalala. "Give us further particulars [of what we have done wrong] or let’s go to court," he said earlier in 2017.
In court papers, Standard Bank and Investec, which was also cited in the case, said the commission had provided no factual evidence.
"Overall, the commission provides no particularity of when, where and how often [Standard Bank SA’s] alleged participation in collusive practices is said to have occurred, rendering it impossible [for the bank] to respond meaningfully," Standard Bank’s group counsel, Ian Sinton, said in papers.
When the commission refused to provide the bank with its records, Standard Bank brought an application to the tribunal in terms of the commission’s rules of procedure, which allow any person access to a record of investigation once a case has been referred.
Standard Bank said it was studying the judgment.
The remaining exception applications will be heard in January 2018.