The summary outlines that Macquarie Bank is identified as a "peregrinus" bank and is implicated in a case concerning an alleged cartel known as the SOC. The evidence against Macquarie is limited to a single instance on September 11, 2013, involving several individuals, including representatives from Macquarie and Absa Bank. The Commission attempted to argue that participation in a chatroom indicated knowledge of broader cartel activities, but the evidence presented was insufficient to establish a link between Macquarie and the SOC. The referral affidavit lacked specific details about Macquarie's involvement and relied on vague references to "other instances of conduct." Moreover, the Commission did not demonstrate how Macquarie's actions affected jurisdiction in South Africa, resulting in a lack of concrete evidence necessary to establish personal jurisdiction against Macquarie in relation to the alleged cartel.
summarise:
[119] Macquarie is a peregrinus bank. There is but one paragraph which alleges that
Macquarie was part of the SOC. In paragraph 116 of the referral affidavit the following
was alleged:
‘On 11 September 2013 Chia, Kunene, Murray, Atkins, Harkins, Donnely, Fryday,
Bhana and Naidoo were participants in an implicated chatroom which Chia and
Kunene discussed bid offer spread for the USD/ZAR (sic). Murray shared
competitively sensitive information.’
[120] It was stated that Chia, Murray, Atkins, Harkins, Donelly and Fryday were
representatives of Macquarie. It means that the only other persons implicated in this
chatroom were Kunene, Barna and Naidoo. The Commission alleges that Kunene
represented Absa Bank Limited but makes no further reference to Barna and Naidoo.
[121] On its own, at best for the Commission this would establish a prohibited
practice between Macquarie and Absa involving a single instance of information
sharing on a single day, namely 11 September 2013. Such a case could have been
brought but it was not. Counsel for the Commission sought to salvage this aspect of
the Commission’s case by saying that anyone who became a participant in any
chatroom or on the Bloomberg terminal somehow would know or should reasonably
have known the chatroom was used as a primary mode of communication to
implement the terms and further the objectives of the SOC. Thus, it would have known
through access to the chatroom that even a participant in but one chat would know of
the other conduct alleged or planned to be put into effect by the remaining participants
in the SOC.122] The difficulty is that there is nothing in the referral affidavit from which these
conclusions can be inferred. In effect, the only evidence available was from the Bar
which was insufficient, nor did the referral, as indicated earlier in this judgment,
distinguish between information in relation to currency trading which is in the public
domain and that which was privy to the participants in the SOC. It is difficult to see
how a case can be made out that a respondent bank participated in the overall SOC
as pleaded on the basis of a single chatroom with a member of Absa. What
compounds the difficulty is that Mr Howes of Absa provided detailed information to the
Commission, pursuant to the leniency application which had been successfully made
by Absa. One would have expected the Commission to specify information Macquarie
might have acquired or shared in its engagement on a single occasion with Absa. It
is simply insufficient for the referral affidavit to refer blandly to ‘other instances of
conduct’ to implement the SOC without any specification thereof. Most certainly no
instances of other conduct by Macquarie are alleged to have taken place.
[123] It is also significant that the Commission’s case was based on argument that it
was foreseeable that the SOC would have the requisite effect in South Africa in respect
of subject matter jurisdiction by peregrini banks. There was not a single reference to
Macquarie in this regard. Even leaving aside this problem of subject matter
jurisdiction, there is simply insufficient evidence to connect Macquarie to the overall
SOC which was an essential requirement of the 2020 order of this Court to establish
personal jurisdiction.
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