paraphrase:

Question

In summary this Court has come to the following set of conclusions: A holding
company which is not registered as a bank, not authorized to trade in foreign currency
and whose role is simply shown to be that one of the subsidiaries traded in foreign
currency cannot on this alone be included in the referral affidavit. Accordingly, the
twenty fourth respondent, (Nedbank Group) the twenty sixth respondent, (FirstRand
Limited), the eleventh respondent (Credit Suisse Group), the twenty first respondent,
(BANA), were incorrectly joined in the referral affidavit and their opposition to the
Commission’s attempt to join them in these proceedings must succeed.
[184] The Tribunal’s finding that the referral affidavit which was placed before the
Court when it made its 2020 order could be reconfigured to pass legal muster could
include further banks subsequent to the initial referral to the Tribunal must be set
aside. That means that the twenty fifth (Nedbank Ltd), twenty seventh and twenty
eighth respondents (FirstRand Bank Ltd and Standard Americas Inc) which were only
cited in June 2020 were improperly joined. Their application to set aside the joinder
must succeed.
[185] This Court has emphasized that there are clear separate requirements to
establish personal and subject matter jurisdiction. In the case of the pure peregrini
both requirements must be established in order for the referral to meet the requisite
legal standards. It was made clear in the 2020 judgment of this Court that the
Commission was required to allege that there were adequate connecting facts
between the parties and the jurisdiction of the Tribunal sufficient to establish personal
jurisdiction against all of the named respondents. As repeatedly emphasized that is
an onerous requirement. The reference to occasional participation in a chatroom
without any additional evidence and where there was no link to any South African bank
is inadequate to meet the test as set out in the 2020 order. Accordingly, the
Commission has failed to show the requisite personal jurisdiction in the case of the
fifth respondent, (ANZL) ninth respondent, (Nomura) twelfth respondent, (Commerz
Bank) thirteenth respondent (MaQuire) and nineteenth respondent (HSBUS).
[186] In the case of the sixth respondent it was made clear to the Commission that
none of the alleged traders have been employed by this respondent and accordingly
there was no basis by which it should have been joined to these proceedings.
[187] In the case of the incolae and local peregrini only subject matter jurisdiction was
required. In the case of the fourth respondent (JP Morgan) the Commission has failed
for reasons set out above to meet this requirement.
[188] In the case of the balance of the respondents, being the second respondent
(BNP Paribas), the third respondent (JP Morgan Chase Bank), the fourteenth
respondent (HSBC Bank PCC) and the twenty third respondent (Credit Suisse
Securities) sufficient facts were placed in the referral affidavit to justify the referral
affidavit and the need for the matter to proceed to trial.

Answer 1

To summarize, the Court has reached the following conclusions: A holding company that is not registered as a bank, lacks authorization to conduct foreign currency trading, and whose only connection to the activity is through one subsidiary, cannot be included in the referral affidavit based on this alone. Therefore, the twenty-fourth respondent (Nedbank Group), the twenty-sixth respondent (FirstRand Limited), the eleventh respondent (Credit Suisse Group), and the twenty-first respondent (BANA) were wrongly included in the referral affidavit, and their opposition to the Commission’s efforts to join them in these proceedings should be upheld.

The Tribunal's determination that the referral affidavit presented to the Court during its 2020 order could be modified to include additional banks beyond the initial referral is to be overturned. This means that the twenty-fifth respondent (Nedbank Ltd), the twenty-seventh and twenty-eighth respondents (FirstRand Bank Ltd and Standard Americas Inc), which were only mentioned in June 2020, were improperly added. Their request to annul the joinder must be granted.

The Court has highlighted that there are distinct requirements to establish both personal and subject matter jurisdiction. In cases involving pure peregrini, both criteria must be satisfied for the referral to adhere to the necessary legal standards. The Court’s 2020 ruling clearly stated that the Commission needed to demonstrate adequate connecting facts between the parties and the Tribunal's jurisdiction to establish personal jurisdiction over all named respondents. This requirement is rigorous. Simply mentioning occasional participation in a chatroom without further evidence, and with no connection to any South African bank, does not fulfill the criteria outlined in the 2020 order. Consequently, the Commission has not proven the necessary personal jurisdiction for the fifth respondent (ANZL), ninth respondent (Nomura), twelfth respondent (Commerz Bank), thirteenth respondent (MaQuire), and nineteenth respondent (HSBUS).

Regarding the sixth respondent, the Commission was informed that none of the alleged traders were employed by this respondent, thus there was no justification for its inclusion in these proceedings.

For incolae and local peregrini, only subject matter jurisdiction is needed. The Commission has not met this requirement in relation to the fourth respondent (JP Morgan) for the reasons previously stated.

For the remaining respondents, specifically the second respondent (BNP Paribas), the third respondent (JP Morgan Chase Bank), the fourteenth respondent (HSBC Bank PCC), and the twenty-third respondent (Credit Suisse Securities), sufficient information has been presented in the referral affidavit to warrant the continuation of the matter to trial.