Advocate Tembeka Ngcukaitobi is leading the legal team that is set to defend the Commission against Standard Bank’s appeal in the Competition Appeal Court (CAC).
Standard Bank is appealing a Tribunal decision that the bank is not yet entitled to access the Commission’s investigation record into the so-called forex case.
Standard Bank approached the Tribunal in September last year, in an effort to compel the Commission to hand over its investigation record. The bank brought the application in terms of Rule 15 of the Commission’s Rules of Procedure, which allows any person access to the record of investigation.
However, the Commission argued that the bank was a litigant in the matter and therefore not yet entitled to the document. The Commission said Standard Bank would have access to the document at discovery, which takes place during the pre-trial period after close of pleadings. The Commission also argued that Rule 15 cannot be used by litigants to secure the Commission’s record of investigation.
In handing down its decision in November, the Tribunal said that the bank was not yet entitled to the record and that it would have access to the document in reasonable time at discovery. The Tribunal said a person could seek to obtain the record earlier, if it provided a good reason for this. The bank did not do so.
18 banks are accused of involvement in global price fixing and market division involving currency trading, including the South African Rand (ZAR) in the Forex case. Exception hearings are set to be heard before the Tribunal in several weeks’ time. The banks still have to file answering affidavits, in response to the Commission’s founding affidavit. The case itself will get under way after pleadings and discovery.