summarise:

Question

[140] SNYS has been dealt with earlier but because of the link to the twenty-eighth
respondent the background to this referral reasons of considerable significance. On
15 February 2017 when the Commission initially referred its complaint referral to the
Tribunal, it included SNYS (the sixth respondent) but it did not cite the twenty eighth
respondent in the initiation statement, its amendment or the complaint referral.
[141] In March 2017 attorneys representing SNYS informed the Commission that
traders alleged to have acted on its behalf were not employed by it but rather by the
twenty eighth respondent. For reasons which are unexplained, the Commission
ignored all this information for more than three years, notwithstanding the various
supplementary affidavits that it filed during this period. Only on 1 June 2020, when it
sought to respond to the order of this Court by filing a replacement to the referral
affidavit, did it include the twenty eighth respondent. It continued to include the sixth
respondent in its referral affidavit.
[142] The problem for the Commission is that SNYS never engaged in forex trading,
a point it made repeatedly to the Commission. In addition, SNYS is a peregrinus and
no evidence connecting it to the SOC was adequately pleaded. It is simply insufficient
to simply state as the Commission had done that SNYS was relevant as a respondent
in that:‘[i]n the context of an alleged cartel and in the absence of viva voce evidence, we
would be reluctant at this early stage of the proceedings to dismiss the Referral against
a particular respondent.’
[143] It is this regrettable failure which is fatal to the case that it brought against the
twenty eighth respondent. For reasons already set out in this judgment it is clear that
the intention of the order of this Court of 2020 was not to bring additional parties before
the Tribunal but to reconfigure the hopelessly inadequate referral affidavit which had
been the subject of the earlier proceedings. It did not entitle the Commission to
include further parties into a case effectively notwithstanding the need to recraft an
inadequate referral affidavit.
[144] In the case of the twenty eighth respondent the Tribunal again sought to come
to the assistance of the Commission by reference to the judgment of Competition
Commission v Yara (South Africa) (Pty) Ltd and others 2013 (6) SA 404 (SCA) and
the Competition Commission v Pickfords Removals SA (Pty) Ltd 2020 (10) BCLR 1204
(CC). These judgments held that an initiation is targeted against conduct not particular
parties and further it is permissible to add a respondent to a complaint initiated at an
earlier stage. The Tribunal adopted the view that joining the twenty eighth respondent
in June 2020 for the first time would not prejudice it because the matter had not
progressed past the pleading stage. Leaving aside the regrettable elision of the
Tribunal over the legal significance of the 2020 order, as the Supreme Court of Appeal
stated in Yara at para 29:
‘Absent any evidence of an express – albeit informal – initiation the question will be
whether a tacit initiation had been established. That will be a matter of inference which depends on the inquiry whether or not it is the most probable conclusion from all of the
facts, the Commission had decided to initiate the additional complaint.’
[145] On the facts of the case against the twenty eighth respondent, it is difficult to
see how tacit initiation was established. The twenty eighth respondent was not a
respondent when the complaint was first initiated in April 2015. It was not the subject
of investigation by the Commission at the date of filing of its amended form CC1, nor
in the initiation statement in August 2016, nor was it the subject of investigation at the
date of referral.
[146] On the Commission’s own version it was only when it prepared its amended
referral on 1 June 2020 that the Commission considered including the twenty eighth
respondent in its referral. This was not the kind of case where the Commission could
have argued that as the cartel operated in secret it had difficulty in detection because
it had obtained clear information as at 1 April 2015 which, had it wished, it could have
also included the twenty eighth respondent. It failed to act prudently. There was, in
short, no basis for the Tribunal to have upheld the Commission’s application to join
Standard America as twenty eighth respondent in the complaint referral.

Answer 1

The document discusses the referral of a case involving SNYS (the sixth respondent) and the twenty-eighth respondent regarding an alleged cartel. Initially, in February 2017, SNYS was included in the complaint, but the twenty-eighth respondent was not. In March 2017, SNYS's legal representatives informed the Commission that the traders involved were actually employed by the twenty-eighth respondent. However, the Commission ignored this information for over three years and only included the twenty-eighth respondent in June 2020 after a court order to amend the referral affidavit.

The document argues that SNYS had not engaged in forex trading and that there was insufficient evidence linking it to the alleged conduct. The Commission's failure to address these issues led to difficulties in establishing a case against the twenty-eighth respondent, as the order from 2020 was meant to improve the referral affidavit, not to add new parties.

Additionally, previous judgments indicated that an initiation is about conduct rather than specific parties, allowing for the addition of respondents later. However, the case against the twenty-eighth respondent lacked a basis for tacit initiation, as it was not a subject of investigation or included in initial filings. The Commission had clear information from 2015 to potentially include the twenty-eighth respondent but failed to act accordingly. Consequently, there was no justification for the Tribunal to allow the addition of the twenty-eighth respondent in the complaint referral.