No. 23 of 1999: Harmful Business Practices Amendment Act, 1 999.
To amend the Harmful Business Practices Act, 1988, so as to harmonise the Act with provincial legislation; to amend and insert certain definitions; to reconstitute and rename the Business Practices Committee; to provide for an executive committee; to authorise an investigating officer to enter any premises with a search warrant; to provide for appeals against decisions of competent authorities in the provinces; to phase out the existing special courts and to replace them with a permanent special court; to provide for the staying of civil proceedings; to extend the application of the Act throughout the Republic; and to provide for matters connected therewith.
Amendment of section 1 of Act 71 of 1988, as amended by section 1 of Act 33 of 1993 1.
deceiving any consumer; or unfairly affecting any consumer.
Amendment of section 2 of Act 71 of 1988, as amended by section 1 of Act 64 of 1991 and section 2 of Act 33 of 1993 2.
Business Practices Consumer Affairs Committee.
(a) The committee shall consist of nine members appointed by the Minister on the grounds of having special knowledge or experience of consumer advocacy, economics, industry, commerce or law, taking into account the need to ensure equitable representation. The Minister shall designate one as chairperson and one as vice-chairperson.
The chairperson shall be a person with suitable experience in consumer law.
In order to assist and to ensure effective co-operation between the committee and a competent authority, the head of consumer affairs in every provincial sphere of government shall be invited to, and may, participate in all meetings of the committee but shall not have the right to vote at such meetings.
shall determine the times when and places at which the meetings of the committee shall be held; and may determine that a meeting other than a meeting convened for purposes of investigations under section 5, takes place through any method of telecommunication.
four other members of the committee.. Substitution of section 3 of Act 71 of 1988 3.
The committee shall, with the consent of the Minister, appoint an executive committee, consisting of at least the chairperson or vice-chairperson; and two other members of the committee.
may delegate any power conferred or duty imposed on the committee by this Act to the executive committee, either in general or in a particular case or in cases of a particular nature.
The executive committee must exercise any power or duty that has been delegated to it in terms of subsection (2)(b) subject to the conditions the committee considers necessary.
may at any time be withdrawn in writing by the committee.
Amendment of section 4 of Act 71 of 1988, as amended by section 2 of Act 64 of 1991 and section 4 of Act 33 of 1993 4.
by the deletion of "and" at the end of paragraph (c); and by the insertion after paragraph (d) of subsection (1) of the following 5 paragraph: "(e) may assign any preliminary investigation or investigation in terms of this Act, or part thereof, to a competent authority.".
Amendment of section 5 of Act 71 of 1988, as amended by section 3 of Act 64 of 1991 5. Section 5 of the principal Act is hereby amended by the substitution in subsection l O (5) for the words "provincial division of the Supreme Court of South Africa" of the words "High Court".
Amendment of section 7 of Act 71 of l988, as amended by section 4 of Act 64 of 1991 6.
by the substitution for paragraph (e) of subsection (3) of the following 30 paragraph: "(e) seize against the issue of a receipt that book, statement, document or object, if it appears to provide proof of a contravention of a provision of this Act, or if he or she wishes to retain it from further examination or for safe custody: Provided that a person from whose 35 possession or charge that book, statement or document has been taken under this paragraph section shall, as long as it is in the possession or charge of the investigating officer concerned, at such person's request be allowed, at his or her own expense and under the supervision of that investigating officer, or any other person in the 40 service of the committee, to make copies thereof or to take extracts therefrom at any reasonable time."
an unfair business practice exists or may come into existence; and a book, document or other object which may afford evidence of such an unfair business practice is on or in those premises.
a period of one month from the date of issue has expired, whichever occurs first.
show that person his or her certificate of appointment; and hand to that person a copy of the warrant.
Amendment of section 8 of Act 71 of 1988, as amended by section 1 of Act 43 of 1990 and section 6 of Act 33 of 1993 7.
"(d) into any unfair business practice referred to the committee in terms of any other law.".
Amendment of section 12 of Act 71 of 1988, as amended by section 3 of Act 43 of 1990 and section 8 of Act 33 of 1993 8.
Amendment of section 13 of Act 71 of 1988, as amended by section 9 of Act 33 of 1993 9.
a notice under section 8(5), or 12(1)(b), (c) or (d); or any notice, direction or measure of a competent authority in terms of such provisions of provincial legislation as have been designated for the purposes of this paragraph by the Minister by notice in the Gazette, to a special court.
(2)(a) In this subsection 'fixed date' means the date on which the Harmful Business Practices Amendment Act, 1998, comes into operation.
The President may by proclamation in the Gazette establish a permanent special court with a permanent registrar, operating on an ad hoc basis, with jurisdiction in the area of jurisdiction of a High Court.
Until a special court contemplated in paragraph (c) is dissolved, any reference to a 'special court' in this Act shall be construed as a reference to such a court.
Any application or matter referred to the special court referred to in paragraph (c) before the fixed date and which has not been disposed of on that date, shall be continued and disposed of by that special court.
a president, who shall be a judge of a High Court designated by the Chief Justice; and two other members appointed by the President by proclamation in the Gazette from the nominees contemplated in subsection (3C).
The Minister shall invite interested parties, by notice in the Gazette and an advertisement in the media regarded by the Minister as appropriate, to nominate candidates who have special knowledge or experience of consumer advocacy, economics, or industrial, commercial or financial matters, within 21 days after the publication of such notice, for consideration as members of the court.
The names of the nominees shall thereafter be published in the Gazette and media contemplated in subsection (3A) for comment.
and such interviews shall be open to the public; and compile a final list of nominees for consideration by the President.
is of unsound mind; or is a member of a competent authority.
No person shall remain a member of the court if he or she fails to disclose an interest or an interest of his or her spouse, immediate family member, business partner or associate or employer which would require him or her to be recused.
If at any stage during the hearing of an appeal, one of the members of the special court dies or becomes otherwise incapable of acting, the hearing shall be adjourned and commenced de novo before a newly constituted special court.
"(a) An appeal in terms of this section shall be lodged with the Minister in writing within six weeks after the date of publication of the notice, direction or measure to which the appeal relates or, if no notice is published, the date of the order of a court dealing with consumer matters and established by provincial legislation and shall set forth the grounds on which the appeal is based."
(10) A special court may after consideration of an appeal, confirm or set aside the notice, direction or measure to which the appeal relates or, if no notice is published, the date of the order of the court contemplated in subsection (5)(a), or amend it in such manner as it may deem equitable, and may make such orders as to costs as it may deem just.
The decision of a the majority of the members of a the special court shall be the decision of the court but the president alone shall decide any question of law, and whether any matter constitutes a question of law or a question of fact, and for that purpose he or she shall sit alone.
"(14) An order of a special court confirming, setting aside or amending the notice, direction or measure to which the order relates, shall be made known by the Minister by notice in the Gazette, and any amendment made to a notice, direction or measure by such an order shall have effect as if it were an amendment made under section 12(4)(d); or a notice, direction or measure made under provincial legislation that has been designated for the purposes of subsection (1)(b) by the Minister by notice in the Gazette.".
Amendment of section 14 of Act 71 of l988 10.
when required to do so by a court of law or under a law; or (c) with the permission of the chairperson, disclose to any other person any information acquired by him or her in the performance of his or her functions in terms of this Act and relating to the business or affairs of any other person.
Amendment of section 19 of Act 71 of l988 11.
"(2) If any person seeks to rely on an alleged unfair business practice in any civil proceedings, the court concerned may, on the application of any party to those proceedings, stay those proceedings in the interests of justice until such time as the Minister or the special court has made a decision in respect of the alleged unfair business practice in terms of this Act.".
Substitution of words "chairman", in the English text, and "harmful business practice" in Act 71 of 1988 12. (1) The English text of the principal Act is hereby amended by the substitution for the word "chairman", wherever it occurs, of the word "chairperson".
The principal Act is hereby amended by the substitution for the words "harmful business practice", wherever they occur, of the words "unfair business practice".
Substitution of section 21 of Act 71 of l988 13.
This Act shall be called the Consumer Affairs (Unfair Business Practices) Act, 1988.
The principal Act applies throughout the Republic.
This Act is called the Harmful Business Practices Amendment Act, 1999.