Tag: South African Competition Commission

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.

Changing Channels: Competition Commission Tunes Into MultiChoice and Altech’s Alleged 2014 Market-Sharing Agreement

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By Tyla-Lee Coertzen and Matthew Freer

On 15 April 2026, the South African Competition Commission (the “Commission”) referred a complaint against MultiChoice South Africa (Pty) Ltd (“MultiChoice”) and Altech UEC South Africa (Pty) Ltd (“Altech”) to the Competition Tribunal for prosecution.

The Commission’s complaint centres around allegations of breaches of section 4(1)(b)(ii) of the Competition Act 89 of 1998 (the “Act”) regarding a market-division agreement entered into between Multichoice and Altech. Specifically, the Commission’s complaint alleges that that, in February 2014, the firms agreed that Altech, a manufacturer of Set Top Boxes (“STBs”), would refrain from entering the pay-television (“pay-TV”) market as a competitor to MultiChoice.

At the time, Altech was a key supplier of STBs to MultiChoice. The Commission argues that this arrangement effectively resulted in allocation of the pay-TV market, where MultiChoice remained a dominant provider of subscription television services, while Altech remained confined to the hardware manufacturing space, despite having the theoretical capability to become an effective competitor.

The referral was announced on 4 May 2026, by way of a media statement released by the Commission issued a media statement announcing the referral of a collusion complaint against pay-TV giant MultiChoice and electronics manufacturer Altech. The referral marks a significant escalation in the Commission’s enforcement of cartel conduct within the broadcasting and technology sectors.

Section 4(1)(b)(ii) of the Act prescribes as follows:

  • An agreement between, or concerted practice by, firms, or a decision by an association of firms, is prohibited if it is between parties in a horizontal relationship and if-
  • it involves any of the following restrictive horizontal practices:
  • dividing markets by allocating customers, suppliers, territories, or specific types of goods or services;

The allegations are founded on a potential per se prohibition, meaning that the Commission is not required to prove that the agreement had actual anti-competitive effects, the existence of the agreement itself is sufficient to establish a violation of the Act.

If the Tribunal ultimately finds against the firms, they face administrative penalties of up to 10% of their respective annual turnovers.

To understand the competition concerns arising from the Commission’s complaint, one must examine the relationship between the two entities during the 2014-2015 period. At the time of the alleged agreement, Altech was a unit of the JSE-listed Altron group (Business Day, 2026). Beyond manufacturing decoders, Altech launched a product known as the “Node,” an interactive smart home and video-on-demand device that utilised satellite connectivity. The Commission appears to view the “Node” as a potential competitive threat to MultiChoice’s DStv service (Business Day, 2026). The agreement in question, according to the regulator, ensured that Altech would not transition from a supplier of hardware to a rival provider of pay-TV services, thereby protecting MultiChoice’s market dominance.

In response to the media statement and the referral, MultiChoice issued a formal statement to the press denying any contravention of the law. The company confirmed that the agreement in question was a “historical supply agreement” that has since come to an end in 2015 (Business Day, 2026).

Multichoice asserts that the arrangement was a standard commercial supply agreement rather than a cartel arrangement. MultiChoice also noted that it is “considering the referral and will respond fully within the prescribed timelines,” indicating that it will challenge the Commission’s interpretation of the facts in due course during the subsequent proceedings before the Tribunal. As of the publication of the Commission’s statement, Altech, which was sold by Altron to Skyblu Technologies, a Skyworth affiliate, in 2019, had not issued a public response.

John Oxenham, Partner at Primerio notes: “The referral of MultiChoice and Altech illustrates the Commission’s continued vigilance regarding market allocation in the digital broadcasting sector. While the Commission asserts that the 2014 agreement served to push a potential competitor out of the market, MultiChoice argues that the historical agreement was benign. The case analysis will likely hinge on whether the Tribunal views Altech as a potential competitor in the pay-TV market at the time of the agreement.”

FUEL AT THE BOILING POINT: Competition Commission Issues Price Gouging Warning

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By Megan Armstrong and Matthew Freer

South African consumers have received warning to expect oil price hikes from 1 April 2026, at a time when households are already price-constrained and cost-conscious. Naturally, as oil prices increase, consumers can reasonably expect these hikes to be passed down through corresponding price increases on the respective goods and services. The question to business is how much of an increase is reasonably permitted within the ambit of competition law, and what should the timing of such an increase be?

The Commission’s Warning

In response to the anticipated price volatility, the Competition Commission of South Africa (the “Commission”) has issued a media statement warning of heightened risks of price gouging across several sectors. The Commission stated the following:

“The risk is prevalent for unregulated fuels such as diesel retail prices and jet fuel; oil-based products such as nitrogen-based fertilisers and plastics; fuel-intensive services such as air, land and sea transport and logistics; and all other products and services that rely on these inputs, particularly food products and delivery services.”

Additionally, the Commission set out clear rules for businesses navigating the looming price increase:

  • “Businesses may not increase prices in anticipation of future fuel cost increases; they may only increase prices once they experience actual fuel cost increases.
  • Businesses that experience fuel cost increases may only increase their prices in proportion to the actual fuel cost increases they experience.
  • In effect, these two conditions mean that product or service margins after the surge in fuel prices should be no higher than the margins prior to the fuel price increase.
  • Furthermore, once fuel costs decline, product or service prices should decline immediately.”

What is Price Gouging?

Price gouging is the act of charging customers unreasonably high prices for goods or services typically in response to a crisis, natural disaster or demand shock where consumers have few alternatives and the product is a necessity. This behaviour sits at the intersection between business ethics and consumer protection in considering exploitation of a demand spike to maximise profits.

South Africa’s legal approach to this issue does not use the term “price gouging” directly in its primary statutes, rather the framework is built upon two distinct pillars. The first pillar is found in the Competition Act 89 of 1998. Section 8(1)(a) of the Act prohibits a dominant firm from charging an “excessive price to the detriment of consumers or customers”, a definition refined by the Amendment Act of 2018 to mean “higher than a competitive price” and where such a difference is “unreasonable”, targeting firms with substantial market power which abuse their dominance. The second pillar is enshrined in the Consumer Protection Act 68 of 2008. Sections 40 and 48 of this Act prohibit suppliers from engaging in unconscionable conduct and from supplying goods or services “at a price that is unfair, unreasonable or unjust”. This provision has a broader application, as it does not require a firm to be dominant. It applies to any supplier who takes unfair advantage of a consumer.

Considering the existing legislative framework on price gouging behaviour in South Africa, price gouging is then defined as the practice of increasing prices on essential goods or services during a declared disaster or crisis to a level that:

1.         Does not correspond to increased costs of providing the good or service; or

2.         Exceeds pre-crisis profit margins without justification; and

3.         Takes unfair advantage of those consumers with limited alternatives as a result of the emergency situation.

Lessons from COVID-19

The most significant development in South Africa with regards to price gouging came in response to the COVID-19 pandemic. On 19 March 2020, the Minister of Trade and Industry, Ebrahim Patel, published the Consumer and Customer Protection and National Disaster Management Regulations and Directions (the “Regulations“). They were designed to prevent an escalation of the disaster and to protect consumers from exploitative commercial practices during this period of vulnerability.

The Regulations formalised a cost-based test for determining excessive or unfair pricing, that a material price increase of an identified good or service will be considered indicative of excessive pricing if:

  • it “does not correspond to or is not equivalent to the increase in the cost of providing that good or service“; or
  • it “increases the net margin or mark-up on that good or service above the average margin or mark-up for that good or service in the three month period prior to 1 March 2020“.

Furthermore, the Commission’s 2021 Guide for Business Compliance with Price Gouging Regulations, emphasised that during a disaster, price increases must be strictly proportionate to cost increases, and businesses must not exploit temporary demand surges to inflate profit margins.

The Commission’s willingness to act was demonstrated early in the pandemic in the Babelegi case, where a firm was found liable for excessive pricing after increasing mask prices by over 1 000% while its own supply costs remained unchanged.

In essence, South Africa’s legal framework defines price gouging not by the final price itself but by seller behaviour, where an unjustified cost increase representing abuse of a temporary situation in which consumers are a captive market and desperate for essential goods and services. A framework established during COVID-19 now guides current pricing conduct and sheds some light on how the Commission would evaluate seller behaviour in relation to demand shocks arising from emergencies, natural disasters, or market disruptions.

What Businesses Should Do

Business should be mindful of not increasing prices in anticipation of the impact of the oil price increase and engage in corresponding price increases once these price increases have a clear and quantifiable impact on internal pricing mechanisms.

The wider public does have recourse available to contact the Commission, should it appear that a business is engaging in price gouging behaviour, or has responded too erratically to the market disruptions caused by the sudden spike in the oil price. The Commission has stated the following: “Given the heightened risk of price gouging during this period of oil price volatility, the Commission calls on the public and businesses to report instances where they believe price gouging is occurring so that the Commission can investigate.”

Ultimately, the lesson from COVID-19 remains unchanged in that price increases have to be justified by evident supply cost increases and not by opportunity. As the Commission has made clear, anticipation pricing and margin expansion will not be tolerated.