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BNP Paribas v Competition Commission of South Africa; Credit Suisse Securities (USA) LLC v Competition Commission of South Africa; and Competition Commission of South Africa v Bank of America Europe DAC CCT 25/24; CCT 27/24; and CCT 30/24

Case  CCT 25/24; CCT 27/24; and CCT 30/24
[2026] ZACC 28

Hearing Date: 19 to 21 August 2025

Judgement Date: 30 June 2026

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

Today, this Court handed down judgment in three applications for leave to appeal and one application for leave to cross-appeal a judgment of the Competition Appeal Court (CAC) delivered in January 2024 (CAC II), which involved an earlier CAC judgment delivered in February 2020 (CAC I). Both judgments arose from appeals against two Competition Tribunal decisions: one delivered in March 2023 (TRIB II) and the other in June 2019 (TRIB I).

The litigation arose from a complaint initiated by the Competition Commission in April 2015 and referred to the Tribunal in February 2017, wherein the Commission alleged that 18 banks colluded to manipulate the USD/ZAR exchange rate from 2007 until at least September 2013.

In TRIB I, the Tribunal considered whether it had personal jurisdiction over foreign banks. The Commission had argued that section 3(1), which applies the Competition Act 89 of 1998 to all economic activity “within, or having an effect within” South Africa, removed the need for common law requirements for personal jurisdiction if the alleged conduct had effects in South Africa, especially in relation to foreign banks with no presence in South Africa, the so-called pure peregrini. The Tribunal disagreed and held that the common law did not as yet recognise personal jurisdiction over the pure peregrini solely on the strength of effects. Regarding subject matter jurisdiction, it adopted the qualified effects (QE) test, that is, whether it was foreseeable that conduct would have a direct or immediate, substantial effect in South Africa.

CAC I agreed that section 3(1) did not remove the need for personal jurisdiction, but held that the common law could be developed so that personal jurisdiction might be established by showing “adequate connecting factors” between the complaint and the Tribunal (ACF test). It endorsed the QE test for subject matter jurisdiction and ordered the Commission to deliver a referral affidavit pleading qualified effects and adequate connecting factors for each respondent. The Commission did so in June 2020 and added five further banks. However, the banks raised exceptions regarding compliance with the CAC I order, and these exceptions were addressed in TRIB II. There, the Tribunal held that the affidavit sufficiently pleaded a prima facie single overarching conspiracy (SOC), satisfied the QE and ACF tests and met the pleading requirements. It upheld the joinder and dismissed the exceptions.

The disgruntled banks appealed to the CAC. CAC II applied the ACF test for personal jurisdiction, emphasising that the pleaded SOC had to show that foreign banks “entered into business with South African banks” through the conspiracy. It assessed the sufficiency of the allegations against each bank and found them sufficient only against BNP Paribas, HSBC Bank plc (HBEU), JPMorgan Chase & Co (JPM Co) and Credit Suisse Securities (CSS). It held that the affidavit was excipiable against other active respondents and further found the joinder of Nedbank, FirstRand Bank Limited (FRB) and Standard Americas Incorporated (SAI) post--referral impermissible.

The Constitutional Court, having found that both its general and constitutional jurisdiction was engaged, went on to acknowledge the Tribunal’s flexible and fairness-oriented approach to exceptions. Without casting doubt on that approach, it proposed the following general test: assuming the alleged facts in the referral affidavit are proved, could the Tribunal reasonably conclude that the Commission has made out a case for the relief sought?

This Court held, in principle, that both peremption and res judicata applied in this case and found no reason to overlook peremption, or relax res judicata. CAC I’s interpretation of section 3(1) on personal and subject matter jurisdiction was thus final. This Court noted that the Commission could have appealed CAC I but chose not to. It would thus be prejudicial to reopen the section 3(1) argument now. Finality had to prevail. In any event, the interpretation of section 3(1) was not properly before this Court as this Court could only decide issues under appeal from CAC II. In CAC II, the interpretation of section 3(1) adopted in CAC I was not an issue.

On joinder, the Court held that, contrary to what Nedbank, SAI and CSS argued, CAC I did not bar later joinder, but regulated pleading particularity for existing respondents. Regarding initiation, the Court noted that initiation, the purpose of which is to define what may be investigated, is directed at prohibited conduct and not a specific firm. A firm may not even know they were named until referral. Thus, the Court held that a fresh initiation identifying Nedbank, SAI and CSS was not necessary.

The Commission, at the Court’s request, submitted a post-hearing note identifying the legal errors – as distinct from factual errors – committed by the CAC. The Court distilled them into 13 alleged legal errors. (1) In respect of the first error, it rejected the argument that the CAC improperly conflated the requirements for pleading an SOC with personal jurisdiction. (2) Second, the Court, contrary to the Commission’s submissions, interpreted the CAC’s use of the phrase “entered into business” to require that a pure peregrini be part of an SOC including South African banks. (3) In relation to the third error, the Court found that the CAC erred in requiring, for purposes of subject matter jurisdiction, that the Commission plead that the SOC cause of action against JPM Bank arose from business conducted through its Johannesburg branch. (4) As to the fourth, there was no legal error – the CAC merely used terminology loosely when assessing sufficiency of participation in the SOC.

(5) The fifth error regarding failure to keep SOC requirements distinct was rejected as the CAC had addressed the second SOC requirement (intentional contribution) and failing that, did not consider the third requirement. (6) As to the sixth, that is, insistence on regularity of communication, this Court held that the CAC did not require frequent interaction as a legal requirement to justify a conclusion of participation – it simply considered regularity as part of its inferential reasoning. (7) The seventh error was also dismissed as the CAC never held that conduct on the Reuters platform could never in law prove cartel participation. (8) Regarding the eighth error, CAC II could not be interpreted to categorically require a firm’s trader to be named for the firm to be prosecuted for cartel conduct – it only made a factual finding of adequacy as to the manner in which this particular SOC was pleaded. (9) Similarly, the ninth error regarding insistence on active chatroom participation was fact- and case-specific. (10) The tenth error was a cumulation of errors six to nine and fell to be dismissed too. (11) The eleventh error, regarding the failure to consider the admissibility and probative value of so-called conduct evidence, this Court held that this evidence was neither ignored nor found inadmissible. It was referred to and found vague or insufficiently indicative of cartel conduct.

(12) The twelfth error, relating to attribution of a trader’s knowledge to their new employer, was rejected on the basis that pre-employment knowledge may corroborate other evidence only where there is also anti-competitive conduct after joining new employers. (13) As to the thirteenth error, relating to allegations of unwarranted speculation of the Commission’s knowledge and the CAC’s reliance on prosecution and leniency assumptions, this Court characterised the CAC’s remarks as minor “makeweight” observations. This supposed error was thus no more than a criticism of the CAC’s factual assessment.

Having dealt with the alleged errors, this Court undertook a bank-by-bank analysis. It found that BNP’s application for leave to appeal in CCT 25/24 must be dismissed whereas CSS’s appeal in CCT 27/24 must succeed. In CCT 30/24, the Commission’s appeal succeeded against JPM Bank and SAI, but failed against Bank of America Europe Designated Activity Company, Australia and New Zealand Banking Group Limited, Standard Bank of South Africa, Nomura, Commerzbank, Macquarie, HSBC Bank USA NA, Merrill Lynch Pierce Fenner and Smith Incorporated, Bank of America NA, Nedbank and FRB. In CCT 30/24, the cross-appeal by HBEU failed. Accordingly, the SOC could, at the level of pleading, proceed against the following active respondents: BNP Paribas, JPM Co, JPM Bank, Investec, SAI and HBEU. The pleaded SOC would also include Standard Chartered Bank, Citibank, Absa and Barclays, even though these banks have either settled or received leniency.

Accordingly, the Court made the following order:

Case CCT 25/24.

 

Case CCT 27/24

 

Case CCT 30/24

 

The Full judgment  here