Paraphrase and use simple and understandable english:

Question

It is important to emphasize the scope of this judgment. It does not, in any way,
sanction cartel conduct. Cartel conduct or behavior is the most egregious form of anticompetitive
behavior. But, on appeal, this Court is obliged to assess whether the
Commission has made out a case in terms of its pleadings which in this case is
contained in the referral affidavit. It should be emphasized that in 2020 a final
opportunity was granted to the Commission to reconfigure the referral affidavit after its
first effort was found to be lamentably inadequate to prosecute a cartel case.
[175] The Commission based its entire case on a SOC in which all of the respondent
banks were said to be participants. As set out in the discussion on the jurisprudence
derived from the European courts and which was the basis of the Commission's own
employment of the concept of a SOC, it was necessary for the Commission to meet
the core requirements thereof.
[176] To repeat, on the Commission’s own version, it was required to show a common
anti-competitive objective, that is an overall plan in which all of the respondent banks
participated to pursue a common economic objective. It was required to show that
each firm had made an intentional contribution by its own conduct to the common
objectives pursued by all of the participants to the SOC. It further was required to
show that each respondent bank was aware of the actual conduct planned or put into
effect by the other undertakings in pursuit of these objectives; that is to perpetuate a
SOC or that each respondent bank could reasonably have foreseen that it participated
in the SOC and that it was prepared to take the risk. As is evident from 2020 Court
order it behoved the Commission to provide significant further details in the referral
affidavit over and above its initiation referral affidavit to show that this overall
conspiracy could be proved to include all the respondent banks.
[177] Compounding the difficulty of this ambitious cause of action as developed by
the Commission was the fact that a number of the banks were peregrini as a result of
which the Commissions was required to make a showing of both personal and subject
matter jurisdiction. As is evident from the 2020 judgment, this Court was prepared to
extend the concept of personal jurisdiction beyond the strictures of the existing
common law position; that is beyond the requirements of a local presence in South
Africa or a party prepared to consent to jurisdiction. It found that in an appropriate
case personal jurisdiction could be extended if there was a case in which peregrini
were part of a conspiracy in which they participated with South African banks directly
such that peregrini banks could be considered to be participants in the cartel. That
was the very least that was demanded from the 2020 order.
[178] Manifestly, evidence to that effect is designed to meet the requirement of
personal jurisdiction. It is an onerous requirement because by so developing the law,
this Court was prepared to extend the concept of personal jurisdiction to meet the
demands of a global economy in circumstances where this development was suitably
circumscribed by means of the evidence required. In addition, the Commission was
required to make a showing of subject matter jurisdiction which in essence is
encapsulated in s3 (1) of the Act. The Tribunal, unfortunately, conflated these two
requirements. The Tribunal’s treatment reduced the personal jurisdiction component
to an almost meaningless exercise. It is important to distinguish these two
requirements to ensure that both are adequately shown by the Commission in seeking
to hold peregrini banks accountable for their conduct.
[179] It is for this reason that an occasional participation in a chatroom or unspecified
conduct which is tenuously inferred as being part of the overall conspiracy is
insufficient to meet these jurisdictional requirements.
[180] While subject matter jurisdiction is widely couched in the words employed in s
3 (1) the basis of subject matter jurisdiction was set out expressly in the referral
affidavit as follows:
‘The conspiracy had a direct or immediate, and substantial effect in the Republic and
it was foreseeable that the impugned conduct would, or had the potential to, have such
an effect.
The common manner in which the effects of the impugned conduct are felt is that
buyers of ZAR pay artificially inflated prices for buying the currency and sell at
artificially reduced prices when selling the currency.’
[181] It should be noted that the manner in which ‘the effect of the conduct’ is set out
in the referral affidavit has significant implications. As pointed out in argument by
counsel for the third and fourth respondents, between 2007 and 2013, the relevant
period for the case brought about the existence of the SOC, daily trades in the South
African domestic forex market increased from USD10.7b to USD18b. The daily ZAR
foreign exchange on the spot markets amounted to approximately USD 26.28b with
USD 6.6b daily on the outright forwards market. The largest single transaction
pleaded by the Commission in respect of the alleged SOC was USD 25m.
[182] It may well be that the effect that various trades documented by the
Commission had on the Rand was so insignificant as to have had no material effect
thereon. But that is a matter which is better dealt with at trial where the respondent
banks, which have a case to answer, can provide evidence to gainsay the case made
by out by the Commission.

Answer 1

This judgment needs to be clearly understood in terms of its limits. It does not support any cartel activities. Such activities are considered the worst type of unfair competition. However, in this appeal, the Court must examine whether the Commission has presented a strong enough case, which in this situation is found in the referral affidavit. In 2020, the Commission was given one last chance to improve this affidavit because its first attempt was very poor and insufficient to pursue a cartel case.

The Commission built its case on a Statement of Common Objectives (SOC) that claimed all involved banks participated in it. According to previous court cases from Europe, which influenced the Commission's use of the SOC concept, the Commission needed to meet essential requirements.

To clarify, the Commission was supposed to show that there was a shared anti-competitive goal, meaning that all the banks had an overall plan that aimed for a common economic aim. They needed to prove that each bank intentionally contributed to these shared goals and that they were aware of what the other banks were doing to support this shared plan. This means each bank should have reasonably expected that it was participating in the SOC and was willing to take that risk. The 2020 court order made it clear that the Commission had to provide much more detail in the referral affidavit than it originally did, to show that this conspiracy involved all the banks in question.

Additionally, some of the banks were outside South Africa, which made things more complicated. The Commission had to prove both personal and subject-matter jurisdiction. The 2020 ruling showed the Court was willing to broaden the definition of personal jurisdiction beyond the usual rules requiring a local presence or consent in South Africa. It decided that in certain cases, personal jurisdiction could apply if foreign banks were directly involved in a conspiracy with South African banks, meaning those foreign banks could also be seen as part of the cartel. This was the minimum requirement set forth by the 2020 order.

Clearly, evidence proving this was necessary to satisfy personal jurisdiction. It's a tough requirement because extending personal jurisdiction in this way was meant to adapt to a global economy, but it needed to be supported with proper evidence. The Commission also had to prove subject matter jurisdiction, as outlined in section 3(1) of the Act. Unfortunately, the Tribunal confused these two requirements, treating personal jurisdiction as almost meaningless. It’s important to keep these two separate so that the Commission can effectively hold foreign banks accountable for their actions.

For this reason, simply taking part occasionally in a chatroom or vaguely suggesting involvement in the conspiracy isn't enough to meet these jurisdictional requirements.

While the basis for subject matter jurisdiction is generally addressed in section 3(1), the referral affidavit specified it as follows: “The conspiracy had a direct and substantial effect in South Africa, and it was expected that this conduct would have such an effect. The main way this conduct affected things was that buyers of South African Rand (ZAR) paid artificially high prices and received artificially low prices when selling it.”

It’s important to note how ‘the effect of the conduct’ is presented in the referral affidavit, which has significant implications. As mentioned by lawyers for some respondents, during the period in question (2007 to 2013), daily trading in South Africa’s foreign exchange market grew from $10.7 billion to $18 billion. Daily trading for ZAR on spot markets was around $26.28 billion, with $6.6 billion on outright forwards markets. The largest single transaction mentioned by the Commission relating to the alleged SOC was $25 million.

It’s possible that the impact of various trades cited by the Commission on the Rand was too small to matter. However, this is something better determined in court during the trial, where the banks involved can present their evidence to counter the Commission's claims.