Category: Africa

Cartel, Courts, and Currency: Inside South Africa’s Longest-Running Bank Collusion Case

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By Matthew Freer, Astra Christodoulou and Natasha Reib

Background

After a decade-long battle over allegations made by the Competition Commission, alleging that up to 18 local and foreign banks had participated in a Single Overarching Conspiracy (“SOC”), the Constitutional Court of South Africa delivered its judgment on the multi-application dispute on 30 June 2026 in BNP Paribas v Competition Commission of South Africa; Credit Suisse Securities (USA) LLC v Competition Commission of South Africa; Competition Commission of South Africa v Bank of America Europe Designated Activity Company and Others [2026] ZACC 28.

The matter arises from the Competition Commission’s complaint that a number of South African and international banks contravened section 4(1)(b) of the Competition Act, which prohibits restrictive horizontal practices. The section provides that such an agreement or concerted practice is prohibited if:

“(b) it involves any of the following restrictive horizontal practices:

(i) directly or indirectly fixing a purchase or selling price or any other trading conditions;

(ii) dividing markets by allocating customers, suppliers, territories, or specific types of goods or services; or

(iii) collusive tendering.”

The Commission alleged that up to 18 local South African banks and foreign banks, which were identified in the February 2017 referral, colluded to manipulate the United States Dollar/South African Rand (USD/ZAR) exchange rate between 2007 and 2013.

Leniency and settlements

Leniency was granted to three respondents, Absa Bank Limited and the two Barclays entities, on the basis of cooperation with the Commission in prosecuting the complaint. A fourth respondent, Citibank NA, reached a settlement with the Commission. This left 14 of the original 18 remaining respondents as active parties in the referral proceedings.

The Joinder Battles: Adding Banks After Referral

In January 2018, the Commission served an application to join another 5 respondents to the matter. An exception was filed arguing that the Commission could not add more respondents to the matter after the referral had been made. The Constitutional Court held that neither the Competition Act nor the Tribunal Rules impose an absolute prohibition on post-referral joinder. Furthermore, it was confirmed that there is no need for the Competition Commission to initiate an entirely new complaint every time a new respondent is identified post-referral.  A second joinder application followed in September 2020, adding a further five respondents, including Standard Americas Incorporated (“SAI”), which brought the total number of respondent banks to 28.

Pleading a Single Overarching Conspiracy

The respondents filed further exceptions to challenge the referral made in February 2017. They argued that the Commission had not pleaded its case properly; that the Tribunal lacked personal jurisdiction over foreign banks, and that the alleged collusion was not adequately explained. The Constitutional Court had to consider the exceptions raised but mainly focused on the issues regarding pleading, jurisdiction, and the addition of respondents post-referral rather than the allegations of collusion.

As to whether the Commission pleaded its case properly, the Constitutional Court clarified the legal principles governing an SOC and explained that the Commission must plead enough material facts, and not just vague allegations, to make out a prima facie case that each respondent intentionally participated in the collusion.  The order handed down in the earlier Competition Appeal Court judgment illustrates just how granular this pleading standard is. The Commission was required to “provide the facts that are relied on to prove that the particular respondent joined or had joined the SOC” (paragraph 19).

The Court clarified the standard applicable to exceptions of this kind. The question is whether, assuming all the facts pleaded by the Commission to be true, the Tribunal could reasonably conclude that the Commission has established a prima facie case for the relief it seeks. Respondents are generally confined to the Commission’s pleaded case when raising an exception, save where fairness justifies a limited departure.

Jurisdiction Over Foreign Banks: Section 3(1) and the Doctrine of Res Judicata

In terms of the exception regarding the Tribunal’s jurisdiction over foreign banks, section 3(1) of the Competition Act is relevant.  The section provides that “this Act applies to all economic activity within, or having an effect within, the Republic.” The Commission’s own position was that section 3(1) displaced the common law requirements of personal and subject matter jurisdiction entirely, so that any effect within South Africa sufficed to found the Tribunal’s jurisdiction, even over banks with no presence here. That argument was rejected by both the Tribunal and, on appeal, the Competition Appeal Court, which held that personal jurisdiction over foreign banks was still required, while developing the common law so that it could be established where there were “adequate connecting factors” between the Commission’s complaint and the Tribunal as a forum (paragraph 17), such as whether the alleged conspiracy connected pure foreign banks, local foreign banks, and South African banks in a single scheme targeting the rand.

The Commission argued before the Constitutional Court that this interpretation was wrong and should be revisited. But the Constitutional Court did not reconsider the interpretation of the section, as the Competition Appeal Court’s earlier judgment on the point had never been appealed. This attracted the doctrines of res judicata, since the matter had already been finally decided, and peremption, since the Commission’s conduct in pleading its later case on the basis of that judgment showed it had accepted it, both of which prevented the Commission from reopening the issue in these proceedings. As the Court put it, quoting its earlier judgment in Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State [2021] ZACC 28; 2021 (11) BCLR 1263 (CC):

“the principles of legal certainty and finality of judgments are the oxygen without which the rule of law languishes, suffocates and perishes” (paragraph 99).

The previous interpretation of the section accordingly remains binding for purposes of this matter.

The outcome

As to outcome, the Constitutional Court refused BNP Paribas leave to appeal, with costs, so the Competition Appeal Court’s decision against it stands. Credit Suisse Securities (USA) LLC succeeded, its appeal was upheld, and the Commission’s application to join it was dismissed, so it is no longer a respondent. The Commission’s own appeal succeeded only against JPM Bank and SAI, whose cases were reinstated before the Tribunal. The Commission’s appeal failed against all the other banks named above, and HBEU’s cross-appeal was also dismissed.

What this means going forward

Although this judgment did not determine whether the banks participated in the alleged SOC, it is likely to set a new precedent in competition law procedure in South Africa. This is because it establishes guidance on how future multi-application disputes regarding a SOC should be investigated, pleaded, and litigated. The case discusses how exceptions should be decided, the legal requirements for a SOC pleading, the jurisdiction over foreign firms involved in anti-competitive conduct affecting South Africa, and the addition of respondents post-referral.

Egypt’s Central Bank Joins COMESA’s Competition Rules: A simple guide to what the 2026 CBE-CCCC agreement means

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By Gabriella Francesca Paolini, Matthew Freer & Holly Joubert

On 11 May 2026, the Central Bank of Egypt (“CBE”) signed an agreement with the Common Market for Eastern and Southern Africa’s (“COMESA”) Competition and Consumer Commission (“CCCC”). COMESA is a regional trade group covering Eastern and Southern Africa. The deal was signed by the CBE Deputy Governor Mai Aboulnaga and the CCCC Chief Dr Willard Mwemba.  This development carries greater significance than it may initially appear, as it materially alters the application of competition law within Egypt’s banking sector. The Memorandum of Understanding (“MoU”) establishes a formal cooperation framework between CBE and the CCCC, enabling the two authorities to coordinate on merger review, share information, and jointly investigate anti-competitive conduct within Egypt’s banking and financial services sector. To understand why this agreement matters, it must be read alongside the CCCC’s newly adopted 2026-2030 Strategic Plan. The Strategic Plan was published in February 2026 setting out five strategic pillars for the CCCC over its new five-year cycle. These pillars include integrating markets and regulatory harmonisation; effective enforcement and compliance; institutional innovation; contextual leadership; and strategic partnerships and stakeholder engagement. The Plan’s overarching mission is “Advancing Regional Integration through Competitive Markets and Empowered Consumers” (2026-2030 Strategic Plan of COMESA CCCC,2026). This Frames cooperation agreements such as this one not as diplomatic courtesy, but as enforcement infrastructure. This article examines the legal and practical implications of the MoU, situating it within Egypt’s broader history of cooperation with COMESA’s competition framework, and considers what the agreement means for banks, payment providers, and fintech businesses operating across the region.

The current environment

The timing of the MoU is equally significant when read against the broader evolution of COMESA’s competition framework. On 5 December 2025, the COMESA Competition and Consumer Protection Regulations, 2025 came into force, introducing for the first time a dedicated regulatory architecture for digital markets, including a global transaction-value threshold of USD 250 million for mergers involving digital market operators . Fintech and payment-related transactions, by virtue of their data-intensive and multi-sided characteristics, fall squarely within this expanded scope. It is against this backdrop that Dr Willard Mwemba, CEO of the CCCC, welcomed the CBE partnership, noting that it “provides a valuable platform for both institutions to share knowledge and strengthen enforcement of competition laws across member states” (Egyptian Gazette, 2026). Read together, the new digital merger regime and the CBE MoU suggest a deliberate, two-pronged strategy: COMESA is simultaneously expanding its own substantive jurisdiction over digital and fintech transactions, while securing the institutional cooperation, through instruments such as the CBE MoU, necessary to apply that expanded jurisdiction effectively within Egypt’s financial sector specifically.

How We Got Here

Egypt’s first agreement with the CCCC dates back to 2016. The 2016 deal was signed by the Egyptian Competition Authority (“ECA”), not the CBE. It addressed matters relating to information sharing, joint investigations, and avoidance of conflicts of bodies in enforcements, whilst ensuring neither party was required to change their own domestic laws. However, the shortfall with the 2016 agreement is that it did not extend to Egypt’s financial sector. In Egypt, competition rules for the financial sector are not handled by the ECA but rather fall into the jurisdiction of the CBE alone, under the 2020 Central Bank Law. There has been a gap for ten years due to COMESA having no formal link with the regulation of competition involving Egypt’s banking sector (Gazette Staff, 2026).

What the MoU Actually Does

The MoU expressly covers six sub-sectors of Egypt’s financial industry: banking, foreign exchange, money transfers, credit ratings, payment systems, and fintech. This scope reflects both the breadth of cross-border financial activity between Egypt, other COMESA Member States, and the CCCC’s 2026–2030 strategic emphasis on digital financial infrastructure as a priority enforcement area. Operationally, the MoU provides for three core cooperation mechanisms. Firstly, the investigative coordination where the CBE and CCCC may now coordinate on competition cases that have cross-border dimensions within the financial sector. Secondly, expertise and information exchange, the two institutions may share knowledge, data, and analytical capacity on issues of common concern. Thirdly, capacity building, the MoU contemplates structured technical assistance to strengthen the CBE’s competition enforcement capabilities over time. A particularly significant operational development arising from the MoU is that the CBE will establish a dedicated internal competition unit to manage implementation. This is a meaningful institutional commitment. It signals that the CBE intends to treat competition oversight in the financial sector as an ongoing operational function, rather than an ad hoc responsibility. For regulated entities, it is a clearer interlocutory for competition-related queries and procedures within the central bank.

What the New Deal Changes

The 2026 MoU fills the gap. The CBE is now the first central bank in COMESA, and the first sector-specific regulator of any kind, to sign a deal of this nature with the CCCC. It covers banking, foreign exchange, money transfers, credit ratings, payment systems, and fintech. Officials refer to it as a step toward “regional integration” and “fair competition.” Although this is an accurate statement, it undersells the practical changes pertaining to which Egyptian authority now works with COMESA on bank-related competition issues, and what that means for any bank or fintech doing business across the region.

Why It Matters

The biggest change resulting from the MoU is how the CBE and CCCC cases now connect. Before the MoU, the two processes were completely separated: anything admitted to one authority did not affect the other. A positive consequence of this change is that it reduces the risk of the CBE and CCCC reaching different conclusions in relation to the same matters. However, this arrangement creates the possibility that adverse findings or commitments made against a party before one authority may be relied upon against that party in proceedings before another authority.

Egypt now has two agreements with COMESA, the old 2016 agreement focusing on general competition and the new 2026 agreement with the CBE, focusing on the financial sector. The CBE and ECA have collaborated informally on anti-trust and merger cases that overlap; however, it is unclear how the new agreement affects this relationship. This question is sharpened by a further point of friction regarding COMESA’s “one-stop-shop” merger review mechanism, under which the CCCC’s clearance of a qualifying regional merger can substitute for separate national notifications across Member States, but this does not apply to Egypt. If that position holds, then the CBE’s accession to a cooperative framework with the CCCC, specifically in relation to merger control in the financial sector, creates an apparent asymmetry. COMESA-level coordination on financial-sector mergers may now operate co-operatively in substance even as the ECA maintains that the formal “one-stop-shop” mechanism is inapplicable to Egyptian merger notifications generally. Reconciling these two positions, in principle and in practice, is likely to be tested in the cases that follow.

The MoU’s express inclusion of payment systems, payment service providers, and financial technology businesses is also notable, and reflects a broader regional trend of competition regulators extending their analytical frameworks to digital financial infrastructure. Fintech mergers and platform-based payment arrangements often raise competition concerns, network effects, data advantages, multi-sided market dynamics, that sit awkwardly within traditional banking competition analysis (European Parliament, 2019). By bringing this sector explicitly within the CBE-CCCC cooperative framework from the outset, the MoU positions Egypt’s central bank to engage with COMESA on what is likely to be one of the more active areas of cross-border competition enforcement in the coming years.

Closing Remarks

The 2026 MoU is more than just a symbolic step toward “regional oversight”, it is the financial-sector version of the 2016 Agreement, finally closing a gap left when Egypt’s financial sector was taken out of the ECA’s control. For lawyers working with banks and fintechs in the region, should shape how they handle admissions and commitments before both authorities going forward.

Does Africa Need Its Own Digital Markets Act? Key Takeaways from the Centre for Competition Law and Economics’ Webinar on Digital Competition Policy Developments in Africa

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By Michael-James Currie and Matthew Freer

On 9 June 2026, the Centre for Competition Law and Economics (“CCLE”) at Stellenbosch University convened a practice webinar that captured, in real time, the tensions, ambitions, and practical fault lines shaping digital competition policy across the African continent. The timing was deliberate. Across Africa, competition authorities have moved past the abstract question of whether digital markets require special attention. Instead, they are now wrestling with a harder set of questions: how to regulate, who should regulate, and, most exactly, what exactly the objectives of that regulation ought to be.

The webinar brought together three voices, each occupying a distinct vantage point. Professor Willem Boshoff, Co-Director of the CCLE, Department of Economics, Stellenbosch University. He opened with a survey of national and regional developments, sketching a landscape marked by innovation but also fragmentation. Malick Diallo, Head of Competition at the African Continental Free Trade Area (“AfCFTA”) Secretariat, then offered a rare first-hand account of how the continental body is positioning itself within that landscape. And finally, Michael-James Currie, Director at Primerio, brought the practitioner’s lens: what do these proliferating rules mean for clients trying to comply, invest, and compete in an environment where regulatory priorities remain dangerously unclear?

The South African Starting Point

Boshoff began by anchoring the discussion in the South African experience, not because it is representative of the continent, he was careful to say it is not, but because it offers a useful baseline for comparison. What is striking about the South African approach, he observed, is how the competition authorities have relied on existing tools rather than demanding a separate, bespoke digital regulatory regime. They have repurposed market inquiry tools, adapted merger control frameworks to capture killer acquisitions, and sought to develop broader skills across the authority rather than building a dedicated digital unit.

That last point is revealing. Boshoff noted, that running a competition authority in Africa comes with limited resources and scarce specialised skills. Building a standalone digital unit is expensive. Instead, the South African authorities have attempted to mainstream digital expertise across the organisation, relying on the two major market inquiries, the Online Intermediation Platforms Market Inquiry and the Digital Media Platforms Market Inquiry, to build institutional understanding from the ground up.

What is equally notable, Boshoff argued, is the preference for time-bound remedies and the distinctly developmental focus that runs through South African competition enforcement. Supporting smaller players, protecting local businesses, and ensuring that digital markets serve broader industrial policy goals have become central features of the approach. “In a sense,” he said, “this is quite different from the approach taken in the European Union, even though it might mean we do a bit more ex ante work within the competition law framework.” The EU has gone for strong, explicit ex ante regulation. South Africa has not, at least not yet.

But Boshoff was careful to emphasise that South Africa is not the continent. When you move beyond its borders, the picture changes dramatically.

Kenya, COMESA, and the March Toward Ex Ante Rules

Kenya represents a different trajectory. Boshoff described a jurisdiction that has historically taken a lighter-touch approach, not unlike South Africa’s. But recent developments, specifically the country’s e-commerce policy and the accompanying amendments to its competition legislation, signal a deliberate shift toward ex ante measures. The competition amendment bill includes alternative thresholds for digital mergers and rethinks how dominance should be assessed in a digital setting. Whether that will translate into dramatically different enforcement outcomes remains to be seen, Boshoff cautioned, but the fact that these provisions are being baked into the legislation itself is significant.

Move up one layer further, to the regional level, and the picture shifts again. COMESA, Boshoff noted, has been remarkably active. Its 2025 regulations align closely with the European DMA-style approach, complete with specific prohibitions, digital merger thresholds, and a posture toward prohibited practices that is far more prescriptive than South Africa’s case-by-case method. That comes with its own set of challenges, Boshoff acknowledged, both for enforcers and for the parties subject to those rules.

Across all these jurisdictions, however, Boshoff identified two common threads. The first is a merger of competition policy and consumer policy, not new, but particularly pronounced in the digital context, where exploitative conduct targeting specific groups of customers has become a focus of attention. The second is an emphasis on protecting small local players, whether through merger remedies or abuse of dominance enforcement. That emphasis on contestability, Boshoff suggested, raises a deeper question: is the goal to have two or three players competing head-to-head, or is it to build ecosystems where one or two large players create opportunities for many smaller ones in adjacent markets? Those are, in effect, industrial policy decisions baked into competition law. And they have not yet been fully debated.

The AfCFTA’s Role

If the national and regional picture is one of fragmentation and divergence, Malick Diallo’s contribution was an attempt to map how the AfCFTA intends to impose order without overriding legitimate local and regional autonomy. Diallo was clear from the outset: the AfCFTA protocol on competition policy was never designed to replace or supersede national or regional frameworks. The preamble explicitly recognises the central role that national and regional authorities will continue to play in promoting fair competition and inclusive growth in intra-African trade.

In describing what the continental body is for, Diallo explained the three-layer architecture. National authorities handle matters of a domestic nature, classic enforcement, abuse of dominance, local measures. Regional bodies like COMESA, ECOWAS, WAIMU, and SAMRC address cross-border conduct within their respective markets. And the AfCFTA Competition Authority steps in only where there is a “continental dimension”, defined in Article 1 of the protocol as conduct, practices, mergers, or agreements that have a significant effect on the markets of at least two state parties that do not share the same regional economic community jurisdiction.

Digital markets are the clearest illustration of why this matters. Diallo pointed to a study by the African Competition Forum showing that Google holds an estimated 90% market share in search across the continent. That dominance is felt in every African country simultaneously. A national authority can deal with purely domestic conduct, and a regional body can handle matters limited to its region, but when conduct cuts across different regions, or when no regional body has jurisdiction, the AfCFTA fills the gap. “We are filling the enforcement gap that arises in cross-regional and truly continental transactions,” Diallo said.

He identified five concrete ways the AfCFTA complements existing work:  

  1. It fills the jurisdictional gap.
  2. It promotes harmonisation of laws and standards. Diallo noted that COMESA has already adopted new provisions on abuse of economic dependence, aligning with the AfCFTA protocol, and the secretariat is supporting other state parties to do the same.
  3. It has established the AfCFTA Competition Network (AFCNet), a platform for regular dialogue, case referrals, joint investigations, and the development of common approaches to market definition, data access, and remedies.
  4. It facilitates capacity building, allowing more advanced jurisdictions like South Africa to share expertise with younger ones.
  5. It provides a structured channel for information sharing, including confidential information, to avoid the inconsistencies and duplicative interventions that currently plague the system.

“What we are trying to build is not a parallel enforcement regime,” Diallo emphasised, “but a continent-wide ecosystem, one where national authorities handle domestic cases, regional bodies handle cross-border intra-regional cases, and the AfCFTA handles truly continental conducts.” Digital markets, given their cross-border nature, network effects, and tendency toward gatekeeper dominance, are the clearest illustration of what the continental authority is meant to tackle.

The Practitioner’s Warning

Speaking from the perspective of a competition lawyer advising clients who must navigate this proliferating regulatory landscape, Michael-James Currie raised a series of pointed questions about whether the current wave of rulemaking is outpacing the capacity of authorities to enforce those rules wisely.

He began with killer acquisitions. Many jurisdictions have lowered their merger thresholds to capture these transactions. But Currie asked a deceptively simple question: what happens after the transaction is captured? Are agencies actually able to make informed, forward-looking assessments in dynamic markets? He noted that while the theories of harm in killer acquisitions are well established, it would be illuminating to conduct an ex post assessment of all the digital mergers captured by lower thresholds over the past ten years. How many of them, with the benefit of hindsight, ought to have been prohibited? The Facebook-Instagram decision is often cited as a cautionary tale, Currie acknowledged, but even there, one must ask: would Instagram be where it is today without Facebook’s investment and synergies?

That question is not merely academic. It goes to the heart of whether new rules are solving a real problem or simply increasing regulatory friction. It leads directly to the issue of capacity. Even the most resourced jurisdictions struggle to make accurate forward-looking assessments in digital markets, Currie observed. For African authorities, many of which lack dedicated digital units, the challenge is magnified. “It’s very difficult,” he said, “not even for a jurisdiction that lacks the resources, even for the most resourced jurisdictions and agencies who have been looking at digital markets for many years, it’s tough for them too.”

Currie then turned to the issue of gatekeepers, which he described as “just one element of digital markets.” He noted that COMESA is currently drafting regulations to define what a gatekeeper is, a process that will not be uncontentious. He pointed to a recent decision where Meta successfully overturned a European Commission designation of Facebook Marketplace as a gatekeeper under the Digital Markets Act, with the General Court of the European Union ruling in Meta’s favour. That decision, Currie argued, shows that there will be a great deal of litigation over who qualifies as a gatekeeper, and that authorities will have a very tough time defining the relevant product markets in which a respondent is said to be a gatekeeper.

Perhaps most provocatively, Currie suggested that the policy conversation is disproportionately focused on platforms and gatekeepers while neglecting digital infrastructure. Currie suggests that if one wants to grow local industries, digital infrastructure is critical. The attention given to platforms, he argued, comes at the expense of the underlying infrastructure that would enable local players to compete in the first place.

It was in the context of competing policy objectives, however, that Currie delivered his most pointed remarks. He observed that South Africa has always mixed industrial policy into its competition regime, protecting employees, supporting SMEs, promoting historically disadvantaged persons. “It all sounds very good on paper,” he said. “But it is very difficult for an agency or regulator, or even government, to say, if there’s a tension between what’s good for consumers and what’s good for a certain class of competitors, who will we prioritise?”

That question is not abstract. It arises in real cases, and it requires an answer. Currie’s concern was that regulators have not provided one. Instead, they have effectively said: trust us. We will arrive at the right conclusion. We don’t want to harm innovation or investment. Just trust us.

“That is a very difficult message to sell to industries and stakeholders,” Currie said. “Policymakers and regulators need to set out, very clearly and deliberately, what they prioritise over what under instances of tension.”

The Unresolved Question

Boshoff, returning to the discussion, noted that Currie’s concerns connected directly to a deeper issue that the webinar had only begun to explore. The implicit industrial policy focus of digital market regulations across the continent has not yet grappled with how best to support African platforms and ecosystems. The EU policy debate, Boshoff observed, is currently centred on digital mergers, scaling, and how merger policy might support European-based platforms in response to the Draghi report. That debate is largely absent in Africa.

Conclusion

The webinar left little doubt that Africa is moving rapidly toward a multi-layered digital competition regime, with the AfCFTA positioning itself as the essential capstone. Malik Diallo’s contribution was valuable precisely because it came from inside the process, he was able to articulate not only the legal architecture but the practical mechanisms, AFCNet, harmonisation efforts, capacity building, through which the AfCFTA intends to make that architecture work.

Currie’s warnings were however valuable. Regulation without clarity of objective is not sound policy. Asking stakeholders to trust that regulators will balance consumer welfare, SME protection, industrial development, and innovation in every case is not a sustainable basis for compliance or investment. As African authorities continue to build out their digital competition frameworks, whether at the national, regional, or continental level, they would do well to answer the question Currie posed. When tension arises between competing objectives, what comes first?

Until that question is answered clearly and deliberately, the risk is not that African competition policy will be too strong or too weak. It is that it will be unpredictable. And for businesses trying to invest and compete across the continent, unpredictability is its own kind of harm. However, the message is equally not one of despair but of opportunity: African competition authorities are building something unprecedented, a truly continental enforcement dialogue, and if they can answer the hard questions about what they value most, they may yet produce a model for digital regulation that is as dynamic as the markets it seeks to govern.