Intellectual Property Rights from Publicly Financed Research and
R 385
Consumer Affairs (Unfair Business Practices) Act, 1988 (Act No. 71 of 1988)12. Powers of Minister after investigation by committee |
| 1) | If the Minister, after consideration of a report by the committee in terms of section 10(1) in relation to an investigation in terms of section 8(1)(a), is of the opinion that a unfair business practice exists or may come into existence and is not satisfied that the unfair business practice is justified in the public interest, and has not confirmed an arrangement which may have been made in terms of section 9(1) or 11(1)(a) in respect of the unfair business practice, the Minister may-- |
| a) | [deleted by section 8 of Act 33 of 1993]; |
| b) | by notice in the Gazette declare the said unfair business practice to be unlawful, and direct any person who in the opinion of the Minister is concerned in the unfair business practice to take such action, including steps for the dissolution of any body, corporate or unincorporate, or the severance of any connection or form of association between two or more persons, including any such bodies, as the Minister may consider necessary to ensure the discontinuance or prevention of the unfair business practice; |
| c) | by notice in the Gazette direct any person who is or was a party to an agreement, arrangement, understanding or omission, or uses or has used any advertising or type of advertising, or applies or has applied a scheme, practice or method of trading, including any method of marketing or distribution, or commits or has committed an act, or brings or has brought about a situation, or has or had any interest in a business or type of business or derives or derived any income from a business or type of business, which in the opinion of the Minister is connected with the said unfair business practice and which may be specified in the notice-- |
| i) | to terminate or to cease to be a party to that agreement, arrangement, understanding or omission; |
| ii) | to refrain from using that advertising or type of advertising; |
| iii) | to refrain from applying that scheme, practice or method of trading; |
| iv) | to cease to commit that act or to bring about that situation; |
| v) | to cease to have any interest in that business or type of business or to derive any income therefrom; |
| vi) | to refrain from at any time-- |
| aa) | becoming a party to any agreement, arrangement, understanding or omission; |
| bb) | using any type of advertising; |
| cc) | applying any scheme, practice or method of trading; or |
| dd) | committing any act or bringing about any situation, of a nature specified in the notice and which in the opinion of the Minister is likely to be applied for the purposes of or in connection with the creation or maintenance of any unfair business practice; |
| vii) | to refrain from at any time obtaining any interest in or deriving any income from a business or type of business specified in the notice; |
| d) | if money was accepted from customers and he deems it necessary to limit or prevent financial losses by those consumers, appoint a curator, with the concurrence of the special court, in order to realize the assets of the person involved in a unfair business practice and to distribute them between the consumers concerned and to take control of and manage the whole or any part of the business of such a person. |
| 2) |
| a) | The powers and duties of a curator referred to in subsection (1)(d) shall be determined by the Minister, who shall appoint such curator by letter of appointment setting out-- |
| i) | the name of the person in respect of whom the curator is appointed and his address; |
| ii) | directions in regard to the security which the curator has to furnish for the proper performance of his duties; |
| iii) | directions in regard to the remuneration of the curator; and |
| iv) | such other directions concerning the performance by such curator of his duties and functions, or the management of the affairs of the person concerned, or any other matter incidental thereto, as the Minister may deem necessary. |
| b) | The Minister may appoint a person who is not employed by the curator, as joint curator. |
| c) | The curator, or the joint curator who is not in the employ of the State, shall out of the funds of the person involved in the unfair business practice in respect of the services rendered by them, be paid such remuneration as the Master of the High Court concerned may in consultation with the curator or the joint curator, as the case may be, determine: Provided that if the funds of the person involved in the unfair business practice appear to be insufficient to adequately compensate the curator or the joint curator, as the case may be, the curator or the joint curator shall in respect of the services rendered by them be paid such remuneration and allowances as the Minister with the concurrence of the Minister of Finance may determine. |
| d) | The Minister shall as soon as practicable announce the appointment of a curator and the powers granted to him on his appointment, and any amendment or withdrawal of such powers, by notice in the Gazette. |
| e) | The Minister may, in the letter of appointment or at any time subsequent thereto, empower the curator in his discretion, but subject to any condition which the Minister may impose-- |
| i) | to suspend or restrict, as from the date of his appointment as curator or any subsequent date, the right of creditors of the person involved in the unfair business practice to claim or receive any money owing to them by that person; |
| ii) | to make payments, transfer property or take steps for the transfer of property to any creditor or creditors of the person involved in the unfair business practice at such time, in such order and in such manner as he may deem fit; |
| iii) | to cancel any agreement between the person involved in the unfair business practice and any other party: Provided that where the agreement so cancelled is a lease of movable or immovable property entered into by the person involved in the unfair business practice prior to the appointment of a curator, a claim for damages in respect of such cancellation may be instituted against that person after the expiration of one year as from the date of such cancellation unless the court grants permission that such claim may be instituted before the expiry of such period; |
| iv) | to enter into agreements on behalf of the person involved in the unfair business practice; |
| v) | to convene from time to time, in such manner as he may deem fit, a meeting of creditors of the person involved in the unfair business practice, for the purpose of establishing the nature and extent of that person's indebtedness to such creditors and for consultation with such creditors in so far as the curator deems it necessary; |
| vi) | to negotiate with any creditor of the person involved in the unfair business practice with a view to the final settlement of the affairs of such creditor with that person; |
| vii) | to make and carry out, in the course of his management of the affairs of the person involved in the unfair business practice, any decision which in terms of the provisions of the Companies Act, 1973 (Act No. 61 of 1973), would have been required to be made by way of a special resolution contemplated in section 199 of that Act; |
| viii) | to dispose, by public auction, tender or negotiation, of any asset of the person involved in the unfair business practice, including-- |
| aa) | any advance or loan; or |
| bb) | any asset for the disposal of which approval in terms of section 228 of the Companies Act, 1973, is necessary. |
| f) | The Minister may, at any time and in any manner, amend or withdraw any power granted or duty imposed in the letter of appointment or under paragraph (e). |
| g) | At the appointment of a curator-- |
| i) | the management of the business or affairs of the person involved in the unfair business practice shall vest in the curator, subject to the supervision of the Master, and any other person vested with the management of the affairs of that person shall be divested thereof; and |
| ii) | the curator shall recover and take possession of all the assets of the person involved in the unfair business practice. |
| h) | While such person is under curatorship-- |
| i) | all actions and legal proceedings and the execution of all writs, summonses and other legal process against that person shall, subject to the provisions of paragraph (e)(iii), be stayed and not be instituted or proceeded with, without the leave of the court; and |
| ii) | the operation of set-off in respect of any amount owing by a creditor to the person shall be suspended. |
| i) | A curator shall - |
| i) | act in the best interests of the clients, debtors and creditors of the person placed under curatorship, and |
| ii) | be entitled to the assistance of an attorney or advocate when interrogating any person summonsed, and such attorney or advocate may cross-examine such person. |
| j) | When a notice whereby a curator is appointed is published under section 12(1)(d), all proceedings in connection with the winding-up of a company or close corporation which may be pending in a court of law and in respect of which a liquidator has been appointed, shall be suspended until the appointment of a curator, and any attachment or execution put in force against the estate or assets of that company or close corporation shall be void. |
| k) | No steps in terms of section 311 of the Companies Act, 1973, or in terms of section 72 of the Close Corporations Act, 1984 (Act No. 69 of 1984), for the conclusion of a compromise, arrangement or composition between a company or close corporation in respect of which a curator has been appointed in terms of this subsection and its creditors shall be taken and any such steps already commenced with shall not be proceeded with, and the costs in connection with such proceedings or steps already commenced with shall, unless the court concerned orders otherwise, be deemed to be part of the costs of the winding-up of that company or close corporation. |
| l) | The curator shall report to the chairperson on his administration of the affairs of the person involved in the unfair business practice, and shall at the request of the chairperson provide any other information set out in that request. |
| m) | The curator shall keep proper record of the steps taken by him in the performance of his functions and of the reasons why such steps were taken. |
| 3) | [Deleted by section 8 of Act 33 of 1993]. |
| 4) | A notice under subsection (1)(b) or (c)-- |
| a) | shall not be published unless the relevant report of the committee has under section 10(3)(b) been published in the Gazette or made known by the Minister in any other manner; |
| b) | shall, subject to subsection (5), come into operation on a date determined by the Minister and mentioned in the notice; |
| c) | may prescribe such requirements as the Minister may consider necessary to achieve the objects of that notice, and specify the persons by whom the terms of the notice or those requirements shall be complied with, and the periods within which and the conditions subject to which those terms or requirements shall be complied with by any such person; |
| d) | may at any time, after further investigation by the committee, by notice in 45 the Gazette be withdrawn by the Minister or be amended by him in such manner as he may deem fit. |
| 5) | If an appeal is lodged with the Minister in terms of section 13(5) in respect of a notice under subsection (1) (b) or (c) of this section, the operation of that notice shall not be suspended unless the special court hearing that appeal, on application by the appellant concerned, so directs, in which case that notice shall, subject to the order of that court, come into operation on such date as the Minister may determine and make known by notice in the Gazette, but not earlier than the date of the notice referred to in section 13(14). |
| 6) |
| a) | If the Minister, after consideration of a report by the committee in terms of section 10(1) in relation to an investigation in terms of section 8(1)(b), is of the opinion that it is in the public interest, he may by notice in the Gazette-- |
| i) | declare to be unlawful any business practice or type of business practice which was the subject of the investigation, either generally or in respect of a particular area, depending upon whether the investigation was of a general nature or was undertaken in relation to a particular area; |
| ii) | prohibit any person from entering into or being or continuing to be a party to an agreement, arrangement or understanding, or from using advertising, or from applying a scheme, practice or method of trading, or from committing an act, or from bringing about a situation, which was the subject of the investigation, either wholly or to the extent specified in the notice, or subject to a condition or exemption so specified or to an exemption contemplated in paragraph (c); |
| iii) | regulate any business practice or type of business practice which was the subject of the investigation, by prescribing conditions or requirements which must be complied with in respect thereof, provided the Minister has, not less than one month before the date of publication of the notice, published the text of the proposed notice in the Gazette, together with a statement of his intention to issue such a notice. |
| b) | A notice under paragraph (a) may at any time, after further investigation by the committee, by notice in the Gazette be withdrawn by the Minister or be amended by him in such manner as he may deem fit, provided, in the case of such an amendment, he has not less than one month before the date of publication of the amending notice published the text of the proposed amending notice in the Gazette, together with a statement of his intention to issue the amending notice. |
| c) | The Minister may, on the recommendation of the committee, in a particular case in writing grant exemption from a prohibition, condition or requirement contemplated in paragraph (a), to such extent and for such period and subject to such conditions as may be specified in the exemption. |
| 7) | Any person who contravenes a notice published or given under this section or who fails to comply therewith shall be guilty of an offence. |
