The South African Competition Appeal Court (CAC) upheld Standard Bank’s appeal and ordered that the Competition Commission make available its investigation record to Standard Bank, in the Commission’s ForEx investigation.
CPI had previously reported that Standard Bank had requested that the Commission make available its record in terms of Rule 15 of the Competition Commission Rules. The Competition Tribunal denied it access to the record of the Commission’s evidence against it, claiming that because of “the length of the record, the extent of the confidential information in it and the burden it would place on the commission in preparing it, a reasonable time for production would be at the same time as discovery is made in the [foreign exchange] case.”
Accordingly, the CAC in the Standard Bank case found that the Tribunal took Standard Bank’s status as a litigant into account when assessing what a reasonable time would be by which the Commission was obliged to make available its record to Standard Bank. The CAC in Standard Bank confirmed that although the Tribunal is not bound by the stare decisis principle in relation to its own decisions, the Tribunal is bound by the CAC’s decisions.
The Tribunal’s decision in Standard Bank was inconsistent with the CAC’s earlier decision in the Group 5 case, where the CAC expressly stated that there is no rational basis for linking the production of the Commission’s record with discovery proceedings. The Tribunal’s departure from the CAC’s earlier precedent was noted with concern by the CAC in Standard Bank.
Full Content: African Antitrust
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