To amend the Harmful Business Practices Act, 1988, so as to insert certain definitions; to further regulate the constitution of the Business Practices Committee; to provide for the appointment of liaison committees; to further regulate the power of the committee to make known information on current policy in relation to business practices; to further regulate a period within which a certain return shall be furnished; to make further provision regarding investigations by the committee; to provide for the attachment of certain property; to further regulate certain negotiations by the committee; to provide for the appointment of curators in certain cases; to repeal the power of the Minister to request the Price Controller to fix a maximum price; and to grant a right of appeal in certain cases; and to provide for matters connected therewith.
(English text signed by the State President.) (Assented to 11 March 1993.
Amendment of section 1 of Act 71 of 1988 1.
"'chairman' means the chairman referred to in section 2(2);".
Amendment of section 2 of Act 71 of 1988, as amended by section 1 of Act 64 of 1991 2.
(2) (a) The committee shall consist of not fewer than four and not more than seven members appointed by the Minister on the grounds of having special knowledge of consumer affairs or knowledge of or experience in economics, industry, commerce, law or the conduct of public affairs, of whom the Minister shall designate one as chairman and one as vice-chairman.
The Minister shall determine whether a member of the committee shall be a full-time or a part-time member.
"(3) When for any reason the chairman is not able to perform his functions or is not available, or when there is a vacancy in the office of the chairman, a member of the committee designated by the Minister the vice-chairman shall act as chairman.".
Insertion of section 3A in Act 71 of 1988 3.
3A. (1) (a) The chairman may appoint one or more liaison committees, which shall advise the committee on such matters as the chairman may determine and refer to a liaison committee for advice.
A liaison committee shall consist of the number of members determined by the chairman.
may be reappointed at the expiry of his period of office by effluxion of time.
The chairman and vice-chairman of a liaison committee shall be designated by the chairman.
The vice-chairman of a liaison committee shall act as chairman when the chairman of the liaison committee is not able to perform his functions or when he is not available, or when there is a vacancy in the office of the chairman of the liaison committee concerned.
The meetings of a liaison committee shall be held at such times and places as the chairman of the liaison committee concerned may determine.
The person presiding at a meeting of the liaison committee concerned shall determine the procedure at the meeting.
The decision of a majority of the members of a liaison committee present at a meeting thereof shall constitute the decision of that liaison committee.
Amendment of section 4 of Act 71 of 1988, as substituted by section 2 of Act 64 of 1991 4.
"(a) shall from time to time make known information on current policy in relation to business practices in general and harmful business practices in particular, to serve as general guidelines for persons affected thereby;".
Amendment of section 6 of Act 71 of 1988 5.
"(2) No person shall in a notice under subsection (1) be directed to furnish the committee with a return specified in that notice within a period of less than 14 seven days after the date of the notice.".
Amendment of section 8 of Act 71 of 1988, as amended by section 1 of Act 43 of 1990 6.
(2) An investigation in terms of subsection (1) or section 4(1)(c) shall not be made or proceeded with by the committee on its own initiative, if in the opinion of the Minister such an investigation is not in the public interest.
Where If any action is prescribed by the Minister under subsection (5) of this section, the committee shall within three Six months from the date of the notice contemplated in subsection (4) of this section report to the Minister in terms of section 10(1) on the result of the investigation, or on any arrangement which may have been made under section 9.
prohibit a person mentioned in the notice from withdrawing or otherwise dealing with any money or movable or immovable property mentioned in the notice.
If the Minister has issued a written notice under paragraph (a)(ii), a copy of such notice shall as soon as practicable be published in the Gazette.
If the Minister attached any immovable property under paragraph (a)(ii), he shall as soon as practicable notify the registrar of deeds of such attachment.
"(6) A notice under subsection (5) may, on the recommendation of the committee, be amended or withdrawn by the Minister at any time and shall not be subject to review by or appeal to any court of law.".
Amendment of section 9 of Act 71 of 1988 7.
"(1) When the committee has decided to undertake a preliminary investigation in terms of section 4(1)(c), or has issued a notice in terms of section 8(4) in relation to an investigation in terms of section 8(1)(a), it may at any time thereafter negotiate with any person or body, corporate or unincorporate, with a view to making an arrangement which in the opinion of the committee will ensure the discontinuance of a harmful business practice which exists or may come into existence and which is the subject of the investigation, either wholly or to such extent as, in the opinion of the committee, it is not justified in the public interest.".
Amendment of section 12 of Act 71 of 1988, as amended by section 3 of Act 43 of 1990 8.
"(d) if money was accepted from consumers 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 harmful 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."
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.
The Minister may appoint a person who is not employed by the curator, as joint curator.
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 harmful business practice in respect of the services rendered by them, be paid such remuneration as the Master of the division of the Supreme Court of South Africa 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 harmful 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 State Expenditure may determine.
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.
to make and carry out, in the course of his management of the affairs of the person involved in the harmful business practice, any decision which in terms of the provisions of the Companies Act, 1973 (Act No.
any asset for the disposal of which approval in terms of section 228 of the Companies Act, 1973, is necessary.
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).
the management of the business or affairs of the person involved in the harmful 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 the curator shall recover and take possession of all the assets of the person involved in the harmful business practice.
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 the operation of set-off in respect of any amount owing by a creditor to the person shall be suspended.
A curator shall act in the best interests of the clients, debtors and creditors of the person placed under curatorship.
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.
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.
The curator shall report to the chairman on his administration of the affairs of the person involved in the harmful business practice, and shall at the request of the chairman provide any other information set out in that request.
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.
Amendment of section 13 of Act 71 of 1988 9.
"(1) There shall be a right of appeal by any person affected by a notice under section 8(5), or 12(1)(b), or (c) or (d), to a special court."
(13) (a) The decision of a special court shall not be subject to review by or appeal to any court of law appeal.
The provisions of section 86A of the Income Tax Act 1962 (Act No. 58 of 1962), shall apply mutatis mutandis to an appeal from the special court, and a reference in the Afrikaans text of that section to the 'Voorsitter van die spesiale hof' shall be construed as a reference to the 'president van die spesiale hof' and a reference in that section to the 'Commissioner' as a reference to the 'Minister' or the 'curator' concerned, as the case may be.
This Act shall be called the Harmful Business Practices Amendment Act, 1993.