The rand is not just a currency! It is a national and economic symbol for SA’s sovereignty.
To measure our economic dignity, millions of South Africans bank on the rand’s value daily. We use it to determine the price of bread, the cost of fuel, the affordability of homes, and the survival of small businesses.
When the integrity of the rand is threatened, South Africans do not experience it as an abstract financial-market event; they experience it through the harsh realities of inequality and the cost of living.
This is why the pursuit of the forex cartel by the Competition Commission remains a matter of national interest.
The centre of this historic battle is not merely about forex traders, banks, or sophisticated financial instruments. It is about a legislative mandate for the competition regulation authorities to protect a sovereign democratic state, its economy and SA citizens from cross-border cartels that may undermine fair competition and public confidence.
Admittedly, the Competition Commission’s prosecution of the foreign exchange cartel has been one of the most significant competition law cases in SA’s history.
The commission alleges that local and international banks participated in cartel conduct aimed at manipulating the US dollar/SA rand exchange rate through information sharing and coordination among traders.
The matter traversed through the entire competition regulation value chain, eventually reaching the Constitutional Court after challenges relating to jurisdiction, pleadings and the commission’s ability to pursue international respondents.
Naturally, the apex court’s judgment must be respected. This is because strong democracy requires both powerful regulators and independent courts.
Importantly, the judgment did not weaken the importance of competition regulation; rather, it clarifies the legal standards that must guide future prosecutions of cross-border cartels.
It essentially clarifies the legal and procedural principles that the commission must take into account when prosecuting international or cross-border cartels. It further affirmed the evolution of the jurisprudence on the jurisdiction of SA’s competition authorities to prosecute international or cross-border cartels.
The court also clarified the standard the commission should meet when pleading a single overarching conspiracy and confirmed that the commission can join new respondents at any stage of the prosecution proceedings before the Competition Tribunal.
Economic sovereignty
Representing the commission at the time, Adv Tembeka Ngcukaitobi’s argument before the Constitutional Court placed the matter within a much deeper constitutional question: economic sovereignty.
He contended that SA cannot be economically sovereign if global actors can allegedly engage in conduct affecting SA’s markets while escaping accountability because of the complexity of international transactions.
Economic sovereignty does not mean isolation from global markets. It means having the institutional strength to ensure that participation in global markets happens on fair and lawful terms.
In its landmark judgment, the court upheld the commission’s appeal against JP Morgan Chase Bank NA and Standard Americas Incorporated and dismissed HSBC Bank PLC’s cross-appeal. Further, the court dismissed the commission’s appeal against eight foreign banks and three local banks.
When the matter is heard at the tribunal, the commission will be assisted by Absa and Barclays, the leniency applicants, as well as Citibank and Standard Chartered, which settled with the commission.
The fight against cartels is not a fight against global business. It is a fight for a fairer global economy where powerful institutions are held accountable.
A nation that cannot protect the integrity of its markets cannot fully protect its people. The future of SA’s economic sovereignty depends on courageous regulators, independent courts and institutions that understand that competition is not merely about prices — it is about democracy, dignity and inclusive growth.
- Makunga is spokesperson for the Competition Commission of SA
