Consumer Affairs Unfair Business Practices Amendment Act

1 Words in bold type in square brackets indicate omissions from existing enacunents. Words underlined with a solid line indicate insertions in existing enactments. (English text signed by the President.) (Assented to 20 September 2001.) ACT To amend the Consumer Affairs {Unfair Business Practices) Act, 1988, so as to provide for the questioning of a person at a preliminary investigation by a person appointed by the chairperson of the committee; to make provision for interim measures pending the outcome of an investigation into an unfair business practice; to repeaJ certain obsolete provisions; and to empower a curator to obtain the assistance or an attorney or advocate under certain circumstances; and to provide for matters connected therewith. BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:- Amendment ofsection S of Act 71 of1988, as amended by section 3 of Act 64 of1991 and section 5 of Act 23 of 1999

1. Section 5 of the principal Act is hereby amended by the substitution in subsection 5 (1) for paragraph (b) of the following paragraph: "(b) the committee, [or] an investigating officer or a person appointed by the chairperson of the committee may question [that] the person summonsed, or any person testifying on behalf of the person summonsed, under oath or affirmation administered by the chairperson, and the committee may examine 10 or retain for further examination or for safe custody such a book, document or other object.". Amendment of section 8 of Act 71 of 1988, as amended by section 1 of Act 43 of 1990, section 6 of Act 33 or 1993 and section 7 or Act 23 of 1999 . -

2. Section 8 of the principal Act is hereby amended by the deletion of subsections (3), 15 (5), (6) and (7). Insertion of section 8A and 88 in Act 71 of 1988

3. The following sections are hereby inserted in the principal Act after section 8: · "Prohibition of business practice pending investigation by committee . SA. (I) Subject to subsection (2), the Minister may on the 20 recommendation of the committee by notice in the Gazelle at any time 4 No. 22701 Act No.21, 2001 GOVERNMENT GAZETTE. 26 SEPTEMBER 2001 CONSUMER AFFAIRS (UNFAIR BUSINESS PRACTICES) AMENDMENT ACT, 2001 before the committee reports formally on the result of an investigation in terms of section 8(1}- (a) prescribe such action as may be necessary to stay or prevent a practice which is the subject of the investigation for a period of up to six months calculated from the date of the notice; and . . 5 ( b) order the attachment of any money or other property, whether movable or immovable, which relates to such investigation and which is held by any person on behalf of or for the benefit of the person mentioned in the notice, or of a customer, debtor or creditor of such person, until a curator contemplated in section 12(2) takes possession of such money 10 or property or until the expiry of the period of six months, whichever occurs first. (2) (a) Before the committee makes a recommendation to the Minister in terms of subsection ( 1 ), it shall inform the person who will be affected by its recommendation of its intention to make the recommendation and give the 15 person an opportunity of a heanng' by the committee. (b) Before the Minister publishes a notice contemplated in subsection (1), the Minister shall take into account any argument at the hearing and must be satisfied that- (i) the practice in question amounts to or is likely to amount to an unfair 20 · business practice; . (ii} there is no alternative remedy; (i\i) the .prospect of harm to consumers if the notice is not published outweighs the potential prejudice to the affected person if th-e notice is published;. and . . (iv) : the person mentioned in the notice has or will have the intention t~ . defeat the interests of consumers by. concealing or dissipating assets. . . (3) A copy of a notice contemplated in subsection (1) shall-. (a) as soon a5 practicable be published in the Gazette; and · (b) be sent by registered post to any person mentioned in the notice 30 . 25 , · . . . . . . . . . together with a written statement- (i} setting out the reasons for the decision to publish the notice; and (ii) advising the recipient that he or she has the right in terms of section 13(1) to appeal to a special court or to take the decision on · review to an appropriate court. · · · · · - 35 (4) If the Minister orders the attachment of any immovable property in terms of subsection (l)(b), .the Minister shall as soon as practicable thereafter notify the registrar of deeds of the attachment. · • · · · · (5) A notice contemplated _ in subsection (1) may be amended or withdrawn by the Minister at any time · on .the recomm.endation of the 40 committee. (6) Any person. who _·contravenes or. fails t~ comply with a notice contemplated in subsection (I) shall be guilty of an offence. · .. 1 Interdict by High Court

88. Notwithstanding section 8A, the Minister may apply to a High Court 45 for an interdict suspending a business practice, or such other remedial action, pending the outcome of any investigation by the committee.·: .. Amendment of section 10 of Act 71 of 1988, as amended by section 2 of Act 43 of . 1990 .. . . . . . . . . . -

4. Section IO of the principal Act is hereby amended by the dele~ion of paragraph (b) 50 of subsection (2). · · · Amendment of section 12 of Act 71 of 1988, as amended by section 3 of Act 43 of 1990, section 8 ~~Act 33of199~ an~ section 8 of Act 23of1999

5. Section 12 of the principal Act is hereby amended by the substitution in subsection (2) for paragraph (i) of the following paragraph: "{i) A curator shall- 55 6 No. 22701 Ad No. 21, 2001 GOVERNMENT GAZEITE, 26 SEPI'EMBER 2001 CONSUMER AFFAIRS (UNFAIR BUSINESS PRACTICES) AMENDMENT ACT, 2001 ill 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 interrogat ing any person summonsed, and. such. attorney .or advocate may cross-examine such person.". 5 Amendment of section 13 of Act 71 or 1988, as amended by section 9 or Act 33 of 1993 and section 9 or Act 23 of 1999 ·

6. Seetion 13 of the principal Act is hereby amended by the substitution in subsection (I) for paragraph (a) of the following paragraph: : · · "(a) a notice under section [8(5),] 8A or 12(1)(b), (c) or (d); or". 10 - · . . . . Short title

7. This Act shall be called the. Consum~i Affairs (Unfair Busines.s Practices) · Amendment Act, 2001.