What is the decision of the court here:

Question

The question of personal and subject matter jurisdiction
[79] Before dealing with the role of each of these banks and whether the
Commission made out a sufficient case for each of these banks to be referred to the
Tribunal, it is necessary, albeit briefly, to again emphasize the question of subject
matter and personal jurisdiction. These requirements lay at the heart of the earlier
litigation which culminated in the 2020 order this Court.
[80] Section 3 (1) of the Act which provides that the Act applies to all economic
activity within or having an effect within the Republic sets out the terms of subject
matter jurisdiction. It was described by this Court in American Soda Ash Corporation
CHC Global (Pty) v Competition Commission of South Africa and others [2003]
ZACAC 6 at para 18 as follows:
‘The question is not whether the consequences of the conduct is criminal or, for that
matter anti-competitive, but whether the conduct complained of has, direct and
foreseeable’ substantial consequences within the regulating country. In other words
‘the effects’ in the present case must be such that they fall within the regulatory
framework of the Act whether they are uncompetitive or not [81] In the 2020 judgment of this Court it stipulated that the Commission set out the
facts that the Commission relies on to allege that it was foreseeable that the impugned
conduct would have a direct or immediate or substantial effect in the Republic.
[82] The referral affidavit seeks to describe the manner in which the Commission
establishes subject matter jurisdiction thus:
‘The conspiracy had a direct or immediate and substantial effect in the Republic and it
was foreseeable that impugned conduct would, or had the potential, to have such an
effect.
The common manner in which the effect of the impugned conduct are felt is that the
buyers of ZAR pay artificially inflated prices for buying the currency and sell at
artificially reduced prices when selling the currency.’
[83] So much for subject matter jurisdiction. In respect of personal jurisdiction as it
pertained to peregrini banks, the Court in its 2020 decision said the following as it was
applicable to peregrini banks.
‘Given the very objective of the cartelists was to manipulate the USD/ZAR exchange
rate so that they could make a higher profit, common sense and logic tell us that it
would be foreseeable that customers would suffer as a result, either directly as
investors in a given transaction or in the prices of goods and services for export and
import purposes.’
[84] Ultimately the Tribunal came to the conclusion that for the establishment of
personal jurisdiction had been established for ‘at this stage … the inquiry into jurisdiction
requires the Tribunal to decide whether its forum is appropriate and convenient to adjudicate
on the alleged conduct of the foreign Respondents’. [85] That, in turn, requires an examination as to whether there was an SOC between
the respondent banks of a kind that reveals not simply that the Rand was the subject
of the trades but that the conspiracy was sufficiently connected to South Africa
because by virtue of it being an overall conspiracy, foreign banks had effectively
entered into “business with South African banks”. This provided sufficient connection
between these respondent banks and South African jurisdiction to sustain a finding of
personal jurisdiction in the circumstances of the case. This concept of personal
jurisdiction as developed by this Court was predicated on an economy where business
is no longer based on bricks and mortar but rather on modern technology which has
created the conditions for a global economy where national borders are transcended
by virtue of technological development. It follows that to sustain an argument that
there was sufficient connecting factors the need is to provide clear evidence of
linkages to the South African banks as part of an overall conspiracy and which thus
linked the incolae banks with the peregrini banks.
[86] With these considerations in mind I can now turn to the case brought against
the individual respondent banks. I deal first with the pure peregrini banks in which
both personal and subject matter jurisdiction are required.

Answer 1

The court's decision pertains to two main aspects: subject matter jurisdiction and personal jurisdiction concerning the banks involved in the case against the Competition Commission.

Subject Matter Jurisdiction

1. The court emphasizes that under Section 3(1) of the relevant Act, the jurisdiction applies to all economic activities within or having an effect within the Republic. This requires showing that the conduct complained of has direct and foreseeable substantial consequences within the Republic.
2. The court cites a previous case (American Soda Ash Corporation CHC Global) to highlight that it is not necessary for the conduct to be criminal or anti-competitive; rather, it must have substantial effects within the country.
3. The Commission argues that the conspiracy resulted in artificially inflated prices for buyers of ZAR currency within the Republic, establishing the necessary subject matter jurisdiction.

Personal Jurisdiction

1. The court refers to its prior ruling regarding personal jurisdiction involving foreign (peregrini) banks. It states that if a conspiracy directly affects consumers or businesses in South Africa, personal jurisdiction may be established.
2. The court indicates that personal jurisdiction is determined by whether the tribunal's forum is appropriate and convenient for adjudicating the alleged conduct of foreign banks in light of their connections to South Africa.
3. It points out that a sufficient connection can be established if there are linkages between foreign banks and South African banks as part of an overall conspiracy. This highlights the modern economy's reliance on technology transcending national borders.

Conclusion

The court acknowledges that personal jurisdiction exists over the respondent banks based on the established ties to the South African market. It affirms that there is enough evidence of a connection between the foreign banks and South Africa to allow the Tribunal to exercise personal jurisdiction in this case.

In summary, the court's decision affirms that both subject matter and personal jurisdiction have been established in this case, allowing the Competition Commission to pursue its case against the respondent banks.