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    The Competition Commission's case against the banks

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    The Competition Commission's case against the banks

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    2K views62 pages

    The Competition Commission's Case Against The Banks

    Uploaded by

    Tiso Blackstar Group
    The Competition Commission's case against the banks

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    of 62
    IN THE COMPETITION TRIBUNAL OF SOUTH AFRICA (HELD AT PRETORIA) In the matter between: VED i} THE COMPETITION COMMISSIC and BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED BNP PARIBAS JP MORGAN CHASE & CO JP MORGAN CHASE BANK N.A AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED STANDARD NEW YORK SECURITIES INC INVESTEC LIMITED STANDARD BANK OF SOUTH AFRICA LIMITED NOMURA INTERNATIONAL PLC CT CASE NO: CASE NO: 2015Apr0147 First Respondent Second Respondent Third Respondent Fourth Respondent Fifth Respondent Sixth Respondent Seventh Respondent Eighth Respondent Ninth Respondent STANDARD CHARTERED BANK Tenth Respondent CREDIT SUISSE GROUP Eleventh Respondent COMMERZBANK AG Twelfth Respondent MACQUARIE BANK LIMITED Thirteenth Respondent HSBC BANK PLC Fourteenth Respondent CITIBANK N.A Fifteenth Respondent ABSA BANK LIMITED Sixteenth Respondent BARCLAYS CAPITAL INC Seventeenth Respondent | BARCLAYS BANK PLC Eighteenth Respondent | | FILING NOTICE | TAKE NOTICE that the Applicant herewith files the following documents: 1. CT (4) & 1(2) form; 2. Notice of Motion; and 3. Referral Affidavit and Annexures ah DATED AT PRETORIA ON THIS _/S_DAY OF FEBRUARY 2017. To: And to: 4 ‘UNDO NGOBESE COMPETITION COMMISSION Applicant 77 Meintiies Street Sunnyside Pretoria Tel: 012 394 3406 Ref: 201Apr0147 — M. Ngobese/M. Mohiala E-mail: MfundoN@compcom.co.zal MakgaleMM@compcom.co.zal THE REGISTRAR Competition Tribunal 3rd Floor, Mulayo The DTI Campus 77 Meintjies Street Sunnyside Pretoria Tel: (012) 394-3300/55 Fex: (012) 394-0169 E-mail address: Leratom@comptrib.co.za BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED First Respondent 2 King Edward Street, EC1A 1HQ London United Kingdom Ref: Edward Bell Tel; 014 305 5842 Email Address: Ed.bell@bami.com Kenny.ford@baml.com Andto: BNP PARIBAS ‘Second Respondent Boulevard de Italiens Paris France Ref: Ms Mosili Mothepu Tel: 0114 088 2111 E-mail Address: mosili mothepu@bnpoaribas.com Andto: WEBBER WENTZEL ATTORNEYS Third Respondent's Attorneys Ref: Mr Martin Versfeld 90 Rivonia Road Sandton Johannesburg Tel: 011 530 5322 E-mail Address: martin. versfeld@webberwentzel.com Andto: WEBBER WENTZEL ATTORNEYS Third Respondent's Attomeys Ref: Mr Martin Versfeld | 90 Rivonia Road Sandton | Johannesburg Tel: 041 530 5322 | E-mail Address: martin. versfeld@webberwentzel.com Andto: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED Fifth Respondent 833 Collins Street, Docklands Melbourne, Australia Ref: The Proper Officer Tel: +61 1300 279 754 E-mail Address: paul.edwards@anz.com Andto: HERBERT SMITH FREEHILLS LLP Sixth Respondent's Attorneys Rosebank Towers ~ th Floor, 15 Biermann Avenue Rosebank Johannesburg Ref: Ms Jean Meijer | Tel: 010 500 2642 | E-mail Address: Jean.Meljer@hsf.com \ Andto: — ENSafrica | Seventh Respondent's Attorneys | 150 West Street Sandton : Johannesburg Ref: Mr Michael Katz Tel: 011 269 7600 E-mail Address: mkatz@ENSafrica.com Andto: HERBERT SMITH FREEHILLS LLP Eighth Respondent's Attorneys Rosebank Towers — 4th Floor, 15 Biermann Avenue Rosebank Johannesburg And to: And to: And to: Ref: Ms Jean Meljer Tel: 010 500 2642 E-mail Address: Jean.Melier@hsf.com NOMURA INTERNATIONAL PLC Ninth Respondent Angel Lane London EC2R 3AB United Kingdom Ref: Jonathan Lewis Tel: (44) 20 7102 4222 Fax: (44) 20 7102 4222 E-mail Address: STANDARD CHARTERED BANK Tenth Respondent 1 Basinghall Avenue London, EC2V 5DD United Kingdom Ref: Mr Richard Wright Tek: (0)11 291 8207 Fax: (0)11 217 6644 E-mail Address: richard. wright@sc.com CREDIT SUISSE GROUP Eleventh Respondent Paradepiatz 8 CH-8001 Zurich ‘Switzerland Ref: Adriana Weilbach Tel: 014 012 80 01 Fax: 011 012 80 95 E-mail Address: adriana. weilbach@credit-suisse.com And to: And to: And to: And to: And to: COMMERZBANK AG ‘Twelfth Respondent Kaiserplatz, Frankfurt am Main MACQUARIE BANK LIMITED Thirteenth Respondent 50 Martin Place Sydney NSW 2000 Australia HSBC BANK PLC Fourteenth Respondent 8 Canada Square London United Kingdom CITIBANK N.A Fifteenth Respondent's Attorneys 6" Floor 90 Grayston Drive Sandton Ref: Lionel Shawe Tel: 27 (0)10 597 9860 E-mail Address: Lionel. Shawe@AllenOvery.com NORTON ROSE FULBRIGHT SOUTH AFRICA INC Sixteenth Respondent's Attorneys 16 Alice Lane Sandton Johannesburg Ref: Mark Griffiths Tel: +27 11 685 8864 And to: And to: Fax: +27 11.301 3258 E-mail Address: mark.griffiths @nortonrosefulbright.com NORTON ROSE FULBRIGHT SOUTH AFRICA INC Seventeenth Respondent's Attomeys 15 Alice Lane Sandton Johannesburg Ref: Mark Griffiths Tel: +27 11 685 8864 Fax: 427 11 301 3268 E-mail Address: mark.griffiths@nortonrosefulbright.com NORTON ROSE FULBRIGHT SOUTH AFRICA INC Eighteenth Respondent's Attorneys 416 Alice Lane Sandton Johannesburg Ref: Mark Griffiths Tel: +27 11 685 8864 Fax: +2711 301 3258 E-mail Address: mark.griffiths@nortonrosefulbright.com Form_ cm qQ) _About this Form ‘This form is issued in terms. ‘of section 50 of the Com: petition Act and Rules. This form is 10 be used only fora referral by the Com= petition Commission. Unless this Is 9 consent ‘proceeding, the respond- “ent may answer this _Tefesral within 20 business days after beng served — with this refer | Thithe answer raises only a point of fa, It must set our | the question of law to be | resolved, Any other | ansiver must be in affidavt | foim, setting out in num ered paragrenhs: | Ge) conase statement of | the grounds on which the | Complaint is opposes | c@oythe meterial facts or | ‘Soins on whey the | Respondent relies; | @an admission oF denial | ofeach ground and of | each material fact relevant | toeach around set out in | the Complaint Referral. {an allegation of fact set out | in the Complaint Referral | thatis not specificaly denied oF admitted in an ‘answer will be deemed to have been admitted. Please see “Trbunal Rls 14 though 19. Form continues on Page 2. Contacting the Tribunal | The Competition Tribunal |Private Gag X24 [Sunnyside [0132 : | Republic of South Africa tel: 27 12.994 3300 Max: 27 12 394 0169 ‘email: ctsa@comptrib.co.za competitiontribunal south africa Referral of Complaint by Commission Date: _15 February 2017 To: the Registrar of the Competition Tribunal, and: (Name of respondent and [if applicable] other participants :) Bank of America Merril Lynch International Limited and Others Concerning: ion file number:| (Complaint name and Commi 2045Ap10147 From: the Competition Commission ‘The Competition Commission alleges that the Respondent contra- vened the provisions of the Competition Act, section _4(1)b\(l by engaging in the following prohibited conduct [Concise statement of the alleged prohibited practice) ] Itis alleged that from at least 2007 to 2013 the Respondents entered Into an agreement and/or engaged in a concerted practice to directly or indirectly fix bids, offers and bid-offer spreads and to allocate customers and suppliers In respect of trade in USD and the ZAR ‘currency pair, This conduct may amount to price fixing and market division in contravention of section 4(1XbYi) and (i) of the ‘Competition Act No.89 of 1998, as amended, compeiontannat any 2-15 TM: This form is prescribed by the Minister of Trade and Industy In terms of section 27 (2) ofthe Competition Act 1999 (Act No, 89 of 1988), Form CT1(1) Page 2 About this Form “This form is issued in terms. _ Of section 50 of the Com- ‘petition Act. “Ths form i toe used onty fora referral by the Con ‘petition Commission. Unless this is @ consent proceeding, the respond: ent may answer this referral within 20 business days after being served “with this referral, Ifthe answer raises only 2 ppolnt of law, It must set out © the question of law to be: resolved. Any other _ _aiisiwer must be in affidavit form, setting out th num bered paragraphs: (2) a concise statement of the grounds on which the Complaint is opposed; (b) the material facts or ‘points on which the respondent relies; (©) an admission oF denial ‘of each ground and of ‘each material fact relevant to each ground set out in the Complaint Referral. ‘An allegation of fact set cout in the Complaint “Referral that is not specif- ‘cally denied of admitted in ‘an answer will be deemed competitiontribunal south africa Referral of Complaint by Commission The Competition Commission seeks an order granting the follow- ing relief, (Concise statement of the order or relief sought:) 4,.Declaring that the Respondents have contravened section 4(1)by(i) and (i) of the Competition Act No. 89 of 1998, as amended ("the Act’), in that at least between 2007 and 2013, the Respondents, being parties in a horizontal relationship, engaged in the fixing of bids, offers and bid offer spread and in dividing markets by allocating customers and suppliers. 2. Declaring that the First the Fourteenth Respondent be liable for the Payment of an administrative penalty equal to 10% of its turnover in terms of section §8(1aXil), read with section 59(2) of the Act. 3. Granting the applicant such further andlor alternative relief as the Competition Tribunal may deem appropriate, to have been admitted, | Please see Competition Tibunal Rules 14 through 19. Contacting the Tribunal ‘The Competition Tribunal [Private Bag X24 Sunnyside 0132 [Republic of South Africa 27-012 3943300 7 012 3940159 e-mail: ctsa@comptrib.co.2a ‘This referral is to proceed as a consent proceeding, ¥_| This referzal is to proceed as a contested proceeding. Attached is an affidavit setting out the grounds of this complaint, and a statement of the material facts and the points of law relevant to it, a required by Competition Tribunal Rule 15(2).. Name and Title of person authorised to sign on behalf of the Competition Commission: Bukhosibakhe Majenge : Chief Legal Counsel Authorised Signature: This form is prescribed by the Minster of Trade and Industy In terms of secon 27 (2) of the Competition Act 1896 (Act No. 89 of 1938) IN THE COMPETITION TRIBUNAL OF SOUTH AFRICA (HELD AT PRETORIA) CASE NO: |E NO: 2015Apr0147 In the matter between: He THE COMPETITION COMMISSION Applicant and BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED First Respondent BNP PARIBAS Second Respondent JP MORGAN CHASE & CO Third Respondent JP MORGAN CHASE BANK N.A Fourth Respondent AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED Fifth Respondent STANDARD NEW YORK SECURITIES INC Sixth Respondent INVESTEC LIMITED Seventh Respondent STANDARD BANK OF SOUTH AFRICA LIMITED — Eighth Respondent NOMURA INTERNATIONAL PLC Ninth Respondent STANDARD CHARTERED BANK Tenth Respondent CREDIT SUISSE GROUP Eleventh Respondent COMMERZBANK AG ‘Twelfth Respondent MACQUARIE BANK LIMITED Thirteenth Respondent HSBC BANK PLC Fourteenth Respondent CITIBANK N.A Fifteenth Respondent ABSA BANK LIMITED Sixteenth Respondent BARCLAYS CAPITAL INC Seventeenth Respondent BARCLAYS BANK PLC Eighteenth Respondent NOTICE OF MOTION PLEASE TAKE NOTICE THAT the Applicant refers a complaint to the Competition Tribunal against the respondents for an order in the following terms: 1. Declaring that the Respondents have contravened section 4(1)(b\I) and (ii) of the Competition Act No. 89 of 1998, as amended (“the Act”), in that at least between 2007 and 2013, the Respondents, being parties in @ horizontal relationship, engaged in fixing of bids, offers and bid offer spread and dividing markets by allocating customers and suppliers. 2. Declaring that the First to the Fourteenth Respondent be liable for the payment of an administrative penalty equal to 10% of its turnover in terms of section 58(1)(@)(ii), ead with section 59(2) of the Act 3. Granting the applicant such further and/or alternative relief as the Competition Tribunal may deem appropriate. TAKE NOTICE FURTHER that if any of the Respondents intends opposing the relief sought in the complaint referral it must, within 20 days after receipt of this complaint referral, serve a copy of an affidavit in answer to the allegations contained in the complaint referral on the applicant and file the answer with the Competition Tribunal together with proof of service. KINDLY TAKE NOTICE THAT the affidavit of MFUNDO NGOBESE, together with the annexures thereto, will be used in support if this complaint referral KINDLY place the matter on the roll accordingly. th SIGNED AND DATED AT PRETORIA ON THIS _/S_ DAY OF FEBRUARY 2017, INDO NGOBESE To: And to: COMPETITION COMMISSION Applicant 77 Meintjies Street Sunnyside Pretoria Tel: 012 394 3406 Ref: 2015Apr0147 — M. Ngobese/M. Mohlala E-mail: MfundoN@compcom.co.za/ MakgaleM@compcom.co.zal THE REGISTRAR Competition Tribunal 3rd Floor, Mulayo The DTI Campus 77 Meintjies Street ‘Sunnyside Pretoria Tel: (012) 394-3300/55 Fax: (012) 394-0169 E-mail address: Leratom@comptrib.co.za BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED First Respondent 2 King Edward Street, EC1A 1HQ London United Kingdom. Ref: Edward Bell Tel: 011 305 5842 Email Address: Ed.bell@bami.com Kenny ford@baml.com And to: And to: And to: And to: BNP PARIBAS ‘Second Respondent Boulevard de Italiens Paris France Ref: Ms Mosili Mothepu Tel: 011 088 2111 E-mail Address: mosili. mothepu@bnpparibas.com WEBBER WENTZEL ATTORNEYS Third Respondent's Attorneys Ref: Mr Martin Versfeid 90 Rivonia Road Sandton Johannesburg Tel: 011 530 5322 E-mail Address: martin.versfeld@webberwentzel.com WEBBER WENTZEL ATTORNEYS Third Respondent's Attorneys Ref: Mr Martin Versfeld 90 Rivonia Road Sandton Johannesburg Tel: 011 530 5322 E-mail Address: martin.versfeld@webberwentzel.com AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED Fifth Respondent 833 Collins Street, Docklands Melbourne, Australia And to: And to: And to: Ref: The Proper Officer Tel: +61 1300 279 754 E-mail Address: paul.edwards@anz.com HERBERT SMITH FREEHILLS LLP Sixth Respondent's Attorneys Rosebank Towers — 4th Floor, 46 Biermann Avenue Rosebank Johannesburg Ref: Ms Jean Meijer Tel: 010 500 2642 E-mail Address: Jean.Meljer@hsf.com ENSafrica Seventh Respondent's Attorneys 150 West Street Sandton Johannesburg Ref: Mr Michael Katz Tel: 011 269 7600 E-mail Address: mkatz@ENSafrica.com HERBERT SMITH FREEHILLS LLP Eighth Respondent's Attorneys Rosebank Towers ~ 4th Floor, 415 Blermann Avenue Rosebank Johannesburg Ref: Ms Jean Meijer Tel: 010 500 2642 E-mail Address: Jean. Meijer@hsf.com And to: And to: And to: And to: NOMURA INTERNATIONAL PLC Ninth Respondent ‘Angel Lane London EC2R 3AB United Kingdom Ref: Jonathan Lewis Tel: (44) 20 7102 4222 Fax: (44) 20 7102 4222 E-mail Address: STANDARD CHARTERED BANK Tenth Respondent 4 Basinghall Avenue London, EC2V 5DD United Kingdom Ref: Mr Richard Wright Tel: (0)11 291 8207 Fax: (0)11 217 6644 E-mail Address: richard. wriaht@sc.com CREDIT SUISSE GROUP Eleventh Respondent Paradeplatz 8 CH-8001 Zurich Switzerland Ref: Adriana Weilbach Tel: 011.012 8004 Fax: 011 012 80 95 E-mail Address: adriana weilbach@credit-suisse.com COMMERZBANK AG Twelfth Respondent Kaiserplatz, Frankfurt am Main And to: And to: And to: And to: MACQUARIE BANK LIMITED Thirteenth Respondent 50 Martin Place ‘Sydney NSW 2000 Australia HSBC BANK PLC Fourteenth Respondent 8 Canada Square London United Kingdom CITIBANK N.A Fifteenth Respondent's Attorneys 6" Floor 90 Grayston Drive Sandton Ref: Lionel Shawe Tel: 27 (0)10 597 9860 E-mail Address: Lionel Shawe@/AllenOvery.com NORTON ROSE FULBRIGHT SOUTH AFRICA INC Sixteenth Respondent's Attorneys 15 Alice Lane Sandton Johannesburg Ref: Mark Griffiths Tel: +27 11 685 8864 Fax: +27 11 301 3268 E-mail Address: mark griffiths@nortonrosefulbright.com And to: And to: NORTON ROSE FULBRIGHT SOUTH AFRICA INC Seventeenth Respondent's Attorneys 15 Alice Lane Sandton Johannesburg Ref: Mark Griffiths Tel: +27 11 685 8864 Fax: #27 11.201 2268, E-mail Address: mark. griffiths@nortonrosefulbright.com NORTON ROSE FULBRIGHT SOUTH AFRICA INC Eighteenth Respondent's Attorneys 15 Alice Lane Sandton Johannesburg Ref: Mark Griffiths Tel: +27 14 685 8864 Fax: #27 11 301 3258 E-mail Address: mark. griffths@nortonrosefulbright.com IN THE COMPETITION TRIBUNAL OF SOUTH AFRICA (HELD AT PRETORIA) ae CT CASE NO: In the matter between: THE COMPETITION COMMISSION and BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED First Respondent BNP PARIBAS Second Respondent JP MORGAN CHASE & CO. Third Respondent | JP MORGAN CHASE BANK N.A Fourth Respondent AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED Fifth Respondent i STANDARD NEW YORK SECURITIES INC Sixth Respondent INVESTEC LIMITED Seventh Respondent Page 1 of 27 o

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