Bank not entitled to forex probe records

CAPE TOWN - The Competition Tribunal said yesterday that it would not order the immediate production of the record of the Competition Commission’s investigation in the pending case against 18 banks alleging collusion over the rand-dollar currencies trades brought earlier this year in the so-called forex case, as Standard Bank was not yet entitled to it.

Standard Bank brought the present application separately from the forex case, relying on a rule in the commission’s rules of procedure that allows any person to have access to the watchdog body's record of the investigation once the case had been referred.

The commission had refused to produce the record to Standard Bank, arguing that as it was a litigant in the forex case and it was not entitled to the record yet.

Standard Bank then brought the application to seek an order to compel production of the record within five days of the order being granted.

The commission opposed the application on a procedural ground, arguing that the case should have been brought by way of a review of its decision to refuse the record and not an application to compel.

The tribunal dismissed the commission’s procedural objection, however, it also decided not to order the immediate production of the record.

It held that under the access rule, which provides no specified time frame for production, the production had to be made within a reasonable time.

On the facts of the present forex case, given the length of the record, the extent of 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 forex case.

The tribunal also held that a person could seek earlier production of the record if it provided a good reason for this. In the present case, Standard Bank, although asked by the commission to provide reasons, had not done so.

Eighteen banks were accused of involvement in global price-fixing and market division involving currency trading, including the rand in the forex case.

Exception hearings are set to be heard before the tribunal in several weeks.

- BUSINESS REPORT ONLINE

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