summarise:

Question

[129] The nineteenth respondent is a pure peregrinus such that both personal and
subject matter jurisdiction are required. By contrast, the fourteenth respondent is a
local peregrinus; hence only subject matter jurisdiction is required.
[130] The referral affidavit, to a considerable extent, conflates the cases against the
fourteenth and nineteenth respondents. It alleges that there is intertwined conduct
between the two respondents. Hence the difficulty in analyzing the Commissions
case against these respondents is the lack of any separation between conduct alleged
to have been implemented by the fourteenth respondent as opposed to the nineteenth
respondent.
[131] The key to the Commission’s case, read as coherently as possible involves Mr
Hatton, who the referral affidavit states was employed by the nineteenth respondent
from 1 September 2005 to 30 October 2010. The referral affidavit implicates Mr
Hatton in 28 of 160 instances of conduct described as constituting the existence of the
SOC which includes six peregrini banks. To the extent that a South African bank is
alleged to have been involved in any dealing with the nineteenth respondent there are
three instances on 27 May 2010, 19 September 2012 and 20 September 2012.
However, in none of these cases was any employee or representative of the
nineteenth respondent named as having been involved.
[132] In none of these instances has the Commission even identified a single
employee or representative of any of the South African banks, (Absa, FirstRand Standard Bank, Investec) with whom the nineteenth respondent could have agreed to
have participated in the overall SOC.
[133] In terms of the referral affidavit Mr Hatton ceased to be employed by the
nineteenth respondent as at 30 October 2010. The other employer of the nineteenth
respondent, Mr Mirkovic, was not alleged to have been an active or passive participant
in any of the conduct implementing the conspiracy. In the only instances in which Mr
Mirkovic was mentioned, his involvement was peripheral and hardly takes the
Commission’s case any further. Even the fact that Mr Hatton was employed in
events that occurred after October 2010 insofar as the nineteenth respondent is
concerned can be discounted. In summary, Hatton is implicated in exchanges with
six banks, none of which was a South African bank. Unlike the case against fourth
respondent, the Commission has failed insofar as the nineteenth respondent is
concerned to link it to any South African Bank.
[134] To emphasize again, to establish personal jurisdiction the Commission had to
show that all of the respondent banks had reached an agreement and/or coordinated
the activities to participate in the SOC and that there was sufficient South African
involvement so as to justify a finding of personal jurisdiction as opposed to subject
matter jurisdiction.
[135] Turning to the fourteenth respondent, it is a local peregrini and only subject
matter jurisdiction is required. Mr Hatton was a regular participant in the chatroom.
Counsel for the fourteenth respondent conceding that he was implicated on 28
occasions. While counsel argued that this amounted to 28 out of 160 instances. It
remains however evidence of regular interaction. There are 31 references to Mr Hatton in the referral affidavit from 2007 to 2010, that is prior to his termination of
employment with these two respondents. It is possible that there were only 28 events
in which he participated but there can be no doubt that for the period 2007-2010 there
is clear prima facie evidence of participation in the SOC as a result of Hatton’s conduct.
While nineteenth respondent admits that Hatton was its employee, the allegations of
participation in trading as contained in the referral affidavit entitles the drawing of an
inference that fourteenth respond has been correctly connected to the SOC. Of
further significance is the affidavit deposed to by Mr Altini on behalf of both these
respondents; in particular the conflation in this affidavit of the respective activities of
these two respondents. There is no clear denial that Mr Hatton had nothing to do with
the activities of fourteenth respondent. Given the extent of Hatton’s role and that only
subject matter jurisdiction is required fourteenth respondent has a case to answer.

Answer 1

The document discusses the jurisdictional complexities concerning two respondents in a case: the nineteenth respondent, a pure peregrinus requiring both personal and subject matter jurisdiction, and the fourteenth respondent, a local peregrinus requiring only subject matter jurisdiction. The referral affidavit has conflated the cases against both respondents, complicating the analysis of their conduct.

Mr. Hatton, employed by the nineteenth respondent from 2005 to 2010, is implicated in various instances of conduct related to a larger scheme (SOC) involving six banks, with no South African banks or employees being directly linked to the nineteenth respondent. The Commission struggles to establish personal jurisdiction over it, as there is no evidence of any agreement or coordination with South African banks.

In contrast, the fourteenth respondent, which only needs subject matter jurisdiction, shows substantial evidence of Mr. Hatton's participation in the SOC during his employment. Counsel for the fourteenth respondent acknowledges that Mr. Hatton was implicated in numerous interactions, and the evidence suggests a clear link to the SOC. The affidavit submitted does not deny that Hatton was involved with the fourteenth respondent, leading to the conclusion that it has a case to answer based on the substantial evidence of participation.