Consumer affairs (Unfair BUSINESS PRACTICES) ACT NO. 71 OF 1988 as amended by Harmful Business Practices Amendment Act, No. 43 of 1990 Harmful Business Practices Amendment Act, No. 64 of 1991 Harmful Business Practices Amendment Act, No. 33 of 1993 Harmful Business Practices Amendment Act, No. 23 of 1999

ACT To provide for the prohibition or control of certain business practices; and for matters connected therewith. Definitions: In this Act, unless the context otherwise indicates - "arrangement" means, except in paragraph (a) of the definition of 'business practice’, an arrangement or undertaking negotiated by the committee; “benefit” means any prize, reward, gift, service, concession, free admittance or admittance at a reduced charge to a place of entertainment, free insurance or insurance at a reduced rate, or any other benefit or advantage of any kind whatsoever; “business” means any business, undertaking or person who-- (a) offers, supplies, or makes available any commodity; (b) solicits or receives any investment or to whom any investment is supplied or made available; “business practice” includes -- (a) any agreement, accord, arrangement, understanding or undertaking, whether legally enforceable or not, between two or more persons; (b) any scheme, practice or method of trading, including any method of marketing or distribution; (c) any advertising, type of advertising or any other manner of soliciting business; (d) any act or omission on the part of any person, whether acting independently or in concert with any other person; (e) any situation arising out of the activities of any person or class or group of persons,but does not include a practice regulated by competition law; “chairperson” means the chairperson referred to in section 2(2); “committee” means the Consumer Affairs Committee established by section 2;

“commodity” means any property, whether corporeal or incorporeal and whether movable or immovable, and also any make or brand of any commodity and any service, whether personal, professional or otherwise, including any storage, transportation, insurance or banking service, but does not include service in terms of a contract of employment; “competent authority” means a competent authority responsible for business practices or consumer protection in the provincial sphere of government in terms of provincial legislation; “consumer” means - (a) any natural person to whom any commodity is offered, supplied or made available; (b) any natural person from whom any investment is solicited or who supplies or makes available any investment; (c) any other person who the Minister with the concurrence of the committee declares to be a consumer by notice in the Gazette; (d) any person who is a consumer for the purposes of this Act in terms of any other law; “investigating officer” means an investigating officer appointed under section 7(1); “investment” means any money, property or any other facility intended for utilisation in connection with any venture or scheme for the acquisition of gain or purported to be so intended; “magistrate” means the Magistrate: Pretoria or the magistrate of the district where the investigation is to be carried out; “Minister” means the Minister of Trade and Industry; “regulation” means a regulation made under section 16; “special court” means a court established under section 13(2); “this Act” includes any notice published or given thereunder and any regulation; “trade coupon” means anything whatsoever which, either by itself or in connection with any other thing or any act, entitles or purports to entitle the holder thereof to receive, or to participate in a competition for, any benefit. “unfair business practice” means any business practice which, directly or indirectly, has or is likely to have the effect of -

(a) harming the relations between businesses and consumers; (b) unreasonably prejudicing any consumer; (c) deceiving any consumer; or (d) unfairly affecting any consumer. 2. Business Practices Committee. (1) There is hereby established a committee to be known as the Consumer Affairs Committee. (2)(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. (aA) The chairperson shall be a person with suitable experience in consumer law (aB) 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. (b) 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 chairperson is not able to perform his functions or is not available, or when there is a vacancy in the office of the chairperson, the vice chairperson shall act as chairperson. (4) The Minister may, if he sees fit, appoint, on such conditions and for such period as he may determine, a person as an additional member of the committee for a particular purpose. (5) A member of the committee - (a) shall hold office for such period, but not exceeding five years, and on such conditions as the Minister may determine at the time of his appointment; (b) who is not in the full-time service of the State, shall in connection with the activities of the committee be paid such remuneration and allowances as the Minister may determine with the concurrence of the Minister of Finance; (c) shall vacate his office if he resigns as a member or if the Minister at any time terminates his period of office as a member if in the opinion of the Minister there are sound reasons for doing so; (d) may be reappointed at the expiry of his period of office by effluxion of time.

(6) (a) No full-time member of the committee shall without the consent of the Minister perform work for anybody else for remuneration. (b) Any person who contravenes paragraph (a) shall be guilty of an offence. (7) (a) The chairperson— (i) shall determine the times when and places at which the meetings of the committee shall be held; and (ii) may determine that a meeting other than a meeting convened for purposes of investigations under section 5, takes place through any method of telecommunication. (b) The person presiding at a meeting of the committee shall determine the procedure at the meeting. (c) The decision of a majority of the members of the committee present at a meeting thereof shall constitute the decision of the committee. (d) No proceedings of the committee shall be invalid by reason only of the fact that a vacancy existed in its membership of that a member was not present during the proceedings or any part thereof. (e) The quorum for the meetings of the committee shall be-- (i) the chairperson or vice-chairperson; and (ii) four other members of the committee. (8) The administrative work arising from the performance of the committee's functions shall be performed by officers of the Department of Trade and Industry designated for that purpose by the Director-General : Trade and Industry. 3. Executive committee.-- (1) The committee shall, with the consent of the Minister, appoint an executive committee, consisting of at least-- (a) the chairperson or vice-chairperson; and (b) two other members of the committee. (2) The committee, with the consent of the Minister-- (a) shall determine the quorum for and the procedure at meetings of the executive committee; (b) 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.

(3) 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. (4) Any delegation in terms of subsection (2)(b)-- (a) must be in writing; (b) does not prevent the committee from exercising the power or performing the duty itself; (c) may at any time be withdrawn in writing by the committee. 3A. Liaison committees.-- (1) (a) The chairperson may appoint one or more liaison committees, which shall advise the committee on such matters as the chairperson may determine and refer to a liaison committee for advice. (b) A liaison committee shall consist of the number of members determined by the chairperson. (2) A member of a liaison committee -- (a)shall be appointed for such period, but not exceeding three years, as the chairperson may determine at the time of his appointment; (b)who is not in the full-time service of the State, shall in connection with the activities of the liaison committee be paid such remuneration and allowances as the Minister may determine with the concurrence of the Minister of State Expenditure; (c)shall vacate his office if he resigns as a member or if the chairperson at any time terminates his period of office as a member because in the opinion of the chairperson there are sound reasons for doing so; (d)may be reappointed at the expiry of his period of office by effluxion of time. (3) The chairperson and vice-chairperson of a liaison committee shall be designated by the chairperson. (4) The vice-chairperson of a liaison committee shall act as chairperson when the chairperson of the liaison c ommittee is not able to perform his functions or when he is not available, or when there is a vacancy in the office of the chairperson of the liaison committee concerned. (5) (a) The meetings of a liaison committee shall be held at auch times and places as the chairperson of the liaison committee concerned may determine.

(b) The person presiding at a meeting of the liaison committee concerned shall determine the procedure at the meeting. (c) 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. 4. Functions of committee. (1) The committee— (a) shall from time to time make known information on current policy in relation to business practices in general and unfair business practices in particular, to serve as general guidelines for persons affected thereby; (b) shall receive and dispose of representations in relation to any matter with which it may deal in terms of this Act; (bA) shall receive and dispose of particulars of the result of any investigation made by a competent authority in relation to any matter with which the committee may deal in terms of this Act; (c) may make such preliminary investigation as it may consider necessary into, or confer with any interested party in connection with, any unfair business practice which allegedly exists or may come into existence; (d) shall or may, as the case may be, perform any other function assigned to it by this Act; (e) may assign any preliminary investigation or investigation in terms of this Act, or part thereof, to a competent authority. (2)(a) As soon as practicable after 31 December 1991 the committee shall submit to the Minister a report on the functions performed by it during the preceding period, and thereafter the committee shall as soon as practicable after 31 December in each succeeding year submit to the Minister a report on the functions performed by it during the relevant year. (b) Any report submitted to the Minister in terms of paragraph (a), shall as soon as practicable be laid upon the Tables of Parliament. 5. Procedure at investigations.-- (1) For the purposes of a preliminary investigation or an investigation in terms of this Act - (a) the chairperson of the committee may summon any person who is believed to be able to furnish any information on the subject of the preliminary investigation or the investigation, as the case may be, or to have in his possession or under his control any book, document or other object which refers to that subject, to appear before the

committee at a time and place specified in the summons, to be questioned or to produce that book, document or other object; and (b) the committee or an investigating officer may question that person under oath or affirmation administered by the chairperson, and the committee may examine or retain for further examination or for safe custody such a book, document or other object. (2) A person from whom a book or document has been taken under subsection (1)(b) shall, as long as it is in the possession of the committee, at his request be allowed, at his own expense and under the supervision of an investigating officer, to make copies thereof or to take extracts therefrom at any reasonable time. (3) A summons for the appearance of a person before the committee or for the production to the committee of a book, document or other object, shall be in the form prescribed by regulation, shall be signed by the chairperson of the committee or a person designated by him and shall be served in the manner so prescribed. (4) Any person who has been summoned to appear before, or to produce a book, document or other object to, the committee and who — (a) without sufficient cause (the onus of proof of which shall rest upon him) fails to appear at the time and place specified in the summons or to remain in attendance until he is excused by the chairperson from further attendance; (b) at his appearance before the committee refuses to be sworn or to make an affirmation after he has been asked by the chairperson to do so; (c) having been sworn or having made affirmation - (i) fails to answer fully and satisfactorily any question lawfully put to him; (ii) fails to produce a book, document or other object in his possession or under his control which he has been summoned to produce; (iii) gives false evidence knowing that evidence to be false of knowing or not believing it to be true, shall be guilty of an offence. (5) The law regarding privilege as applicable to a witness giving evidence before, or summoned to produce a book, document or other object to, a High Court, shall apply in relation to any person summoned under this section. 6. Committee may require returns (1) To enable the committee properly to perform its functions, it may by notice in writing direct any person to furnish the committee, within a period specified in the notice, or from time to time at the times or within the periods to specified, with a written return showing in detail such information in respect of the business or

activities of that person as may be specified in the notice, including information regarding— (a) any agreement which that person may at any time have entered into or intend to enter into with any other person, or in which he may at any time have been concerned; (b) any arrangement or understanding to which that person or any business in which he is or was concerned, may be or may at any time have been a party. (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 seven days after the date of the notice. (3) Any person who fails to comply with a notice under subsection (1), or who in response to such a notice knowingly furnishes information which is false in a material respect, shall be guilty of an offence. 7. Investigating officers (1) The committee may appoint persons whom it considers suitable, as investigating officers. (2) An investigating officer who is not in the full-time service of the State shall be appointed on such conditions and at such remuneration as the Minister may determine. (3) In order to ascertain whether this Act is being observed by any person to whom it applies, or to obtain any information required by the committee in relation to a preliminary investigation or an investigation by it in terms of this Act, an investigating officer may, subject to this section, at all reasonable times enter any premises on or in which any commodity, investment, book, statement, document or other object connected with that observation or information is or is reasonably suspected to be, and may - (a) inspect or search those premises; (b) examine that commodity or investment, and request from the owner or person in charge of those premises, information regarding that commodity or investment; (c) examine or make copies of, or take extracts from, any book, statement or document found in or upon those premises and which refers or is suspected to refer to any business practice which may be relevant at any such preliminary investigation or investigation by the committee, and request from the owner or person in charge of those premises or from any person in whose possession or charge that book, statement or document is, an explanation of any entry therein; (d) examine any object found in or upon those premises and which refers or is suspected to refer to any business practice which may be relevant at any such preliminary investigation or investigation by the committee, and request from the

owner or person in charge of those premises or from any person in whose possession or charge that object is, information regarding that object; (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 for (original reads from) further examination or for safe custody: Provided that a person from whose possession or charge that book, statement or document has been taken under this 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 service of the committee, to make copies thereof or to take extracts therefrom at any reasonable time. (3A) Unless the owner or person in charge of the premises concerned has consented thereto in writing, an investigating officer shall enter premises and exercise any power contemplated in subsection (3) only under a search warrant issued by the magistrate if it appears to him or her from information given on oath or affirmation that there are reasonable grounds to suspect that— (a) an unfair business practice exists or may come into existence; and (b) a book, document or other object which may afford evidence of such an unfair business practice is on or in those premises. (3B) A search warrant referred to in subsection (3A) shall— (a) authorise an investigating officer mentioned in the warrant to enter the premises identified in the warrant for the purpose of exercising any power contemplated in subsection (3); (b) be executed by day, unless the magistrate authorises the execution thereof at night; (c) be of force until - (i) it is executed; (ii) it is cancelled by the magistrate; or (iii) a period of one month from the date of issue has expired, whichever occurs first. (4) An investigating officer executing a search warrant shall, before such execution, upon demand by any person whose rights may be affected-- (a) show that person his or her certificate of appointment; and (b) hand to that person a copy of the warrant. (5) Any person who -

(a) obstructs or hinders an investigating officer in the performance of his functions under this section; (b) when an investigating officer asks him for an explanation or information relating to a matter within his knowledge, refuses or fails to give that explanation or information or gives an explanation or information which is false or misleading, knowing it to be false or misleading; or (c) falsely represents himself to be an investigating officer, shall be guilty of an offence. 8. Investigations by committee.-- (1) Subject to subsection (2); the committee may on its own initiative, and shall on the directions of the Minister, make such investigation as it may consider necessary — (a) into any unfair business practice which the committee or the Minister, as the case may be, has reason to believe exists or may come into existence; (b) into any business practice or type of business practice, in general or in relation to a particular commodity or investment or any class or kind of commodity or investment or a particular business or any class or type of business or a particular area, which in the opinion of the committee or the Minister, as the case may be, is commonly applied for the purposes of or in connection with the creation or maintenance of unfair business practices; (c)........ (d) into any unfair business practice referred to the committee in terms of any other law. (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. (3) If any action is prescribed by the Minister under subsection (5) of this section, the committee shall within 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. (4) The committee shall by notice in the Gazette make known any investigation which it proposes to make in terms of subsection (1), and further make known that any person may within a period specified in the notice of not fewer than 14 days from the date of the notice, make written representations regarding the investigation to the committee.

(5)(a) After such a notice relating to an investigation in terms of subsection (1)(a) has been published and before the relevant report is submitted to him the Minister may, on the recommendation of the committee - (i) prescribe by notice in the Gazette, for a period specified in the notice, but not exceeding the period of six months referred to in subsection (3), such action as in the opinion of the Minister shall be taken to stay or prevent any unfair business practice which is the subject of the investigation and which the Minister has reason to believe exists or may come into existence; (ii) by notice in writing or by notice in the Gazette— (aa) attach any money or other property whether movable or immovable which is related to such investigation and which is held by any person on account or on behalf of or for the benefit of a person mentioned in the notice, or of a customer, debtor or creditor of the person mentioned in the notice, until a curator referred to in section 12(2) takes that money or other property into his possession; (bb) prohibit a person mentioned in the notice from withdrawing or otherwise dealing with any money or movable or immovable property mentioned in the notice. (b) 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. (c) 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. (7) Any person who contravenes or fails to comply with a notice under subsection (5) shall be guilty of an offence. 9. Negotiations by committee. -- (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 unfair business practice which exists or may come into existence and which is the subject to the investigation, either wholly or to such extent as, in the opinion of the committee, it is not justified in the public interest. (2) If the committee has made such an arrangement, it shall report to the Minister thereon. 10. Reports by committee. --

(1) The committee shall report to the Minister on the result of any investigation made by it in terms of section 8(1). (2) If the committee - (a) After an investigation in terms of section 8(1)(a) - (i) is of the opinion that a unfair business practice exists, or was in existence at any time after the dated of the notice in terms of section 8(4), or may come into existence; (ii) is not satisfied that that unfair business practice is justified in the public interest; and (iii) has not made an arrangement with the party or parties concerned which has been confirmed by the Minister in terms of section 11(2)(a); (b) after an investigation in terms of section 8(1)(c) is of the opinion that the price of, or any price increase, reduction of discount or method of fixing prices in relation to, any commodity is not justified in the public interest, the committee shall in its report recommend to the Minister that such action be taken under section 12(1) as it may consider necessary in the circumstances. (3) Every report in terms of this section which in the opinion of the Minister may be made known without detriment to the public interest - (a) shall as soon as practicable be laid upon the Tables of Parliament; (b) may at any time, either before or after it is or was laid upon the Tables of Parliament, be published by the Minister in the Gazette or be made known in any other manner that the Minister may deem expedient. 11. Procedure in respect of arrangements by committee - (1) The Minister may after consideration of a recommendation by the committee in terms of section 10(2)(a) - (a) direct the committee to undertake such negotiations as are referred to in section 9(1) and, if it has made a relevant arrangement, to report to the Minister thereon; and (b) if the committee advises him that it has found it impracticable to negotiate with any relevant person or body or has not within a period determined by the Minister, and which he may from time to time in his discretion extend, succeeded in making an arrangement with such a person or body, take such steps under section 12(1) as the committee may recommend. (2) The Minister may after consideration of a report by the committee on an arrangement contemplated in section 9(2) or subsection (1)(a) of this section, if he considers it to be in the public interest—

(a) confirm the arrangement, either without modification or with such modifications, if any, as may be agreed to by the person concerned, and either unconditionally or subject to such conditions as may be agreed to by that person and as the Minister may on the recommendation of the committee deem fit; or (b) set aside the arrangement and give such directions or prescribe such requirements under section 12(1) as he may on the recommendation of the committee consider necessary under the circumstances, and such an arrangement or modified arrangement, together with the conditions, if any, subject to which it has been confirmed, shall be published by the Minister in the Gazette, and shall thereupon have the same effect as a notice under section 12(1). (3) Any person who contravenes or fails to comply with a notice under subsection (2) shall be guilty of an offence. 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 - (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 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 unfair business practice and to distribute them between the consumers concerned and to take control or 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 performand 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 concurrencee of the Minister of Finance may determine. (d) The Minister shall as soon as practiable 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 appoitnment 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 or 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 affiars 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 act in the best interest of the clients, debtors and creditors of the person placed under curatorship. (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 coporation 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)...... (4) A notice under subsection (1)(b) or (c) - (a) shall not be published unless the relevant report of the c ommittee 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 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 any 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 issued 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. 13. Appeals - (1) There shall be a right of appeal by any person affected by— (a) a notice under section 8(5), or 12(1)(b), (c) or (d); or (b) 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. (b) 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. (c) The President may by proclamation in the Gazette determine the date of dissolution of a special court established before the fixed date; (d) 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. (e) 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.

(3) A special court shall consist of— (a) a president,who shall be a judge of a HighCourt designated by the Chief Justice; and (b) two other members appointed by the President by proclamation in the Gazette from the nominees contemplated in subsection (3C). (3A) 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. (3B) The names of the nominees shall thereafter be published in the Gazette and media contemplated in subsection (3A) for comment. (3C) The Minister may - (a) interview the nominees referred to in subsection (3B) and such interviews shall be open to the public; and (b) compile a final list of nominees for consideration by the President. (3D) No person shall be appointed or remain a member of the court if he or she - (a) is not a citizen of the Republic resident in the Republic; (b) is a public servant; (c) at the relevant time is, or during the preceding 12 months was, an office bearer, serving public representative or employee of any party, movement, organization or body of a party-political nature; (d) is an unrehabilitated insolvent; (e) has before the commencement of this Act been convicted of an offence for which he or she has been sentenced to imprisonment without the option of a fine, unless the President, having due regard to the nature of the offence and the circumstances of the case, is satisfied on reasonable ground that such person is fit and proper to be so appointed; (f) has at any time been removed from an office of trust on account of misconduct or dishonourable conduct; (g) is of unsound mind; or (h) is a member of a competent authority.

(3E) 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. (3F) 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. (4) A member of a special court appointed under subsection (3)(b) - (a) who is not in the full-time service of the State, shall be paid such remuneration and allowances as the Minister may determine after consultation with the Minister of Justice and with the concurrence of the Minister of Finance; (b) shall vacate his office if he resigns as a member or if the President at any time terminates his period of office as a member if in the opinion of the President there are sound reasons for doing so. (5)(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. (b) The Minister shall as soon as practicable after the lodging of an appeal with him, give notice of that lodging in the Gazette. (6) The date, time and place for the hearing of an appeal shall be determined by the president of the special court concerned and shall be made known in writing to the appellant by the Minister not less than 30 days before that date. (7) At the hearing of an appeal, the Minister may be represented by a person designated by him, and the appellant may appear in person or be represented by his advocate, attorney or agent. (8) A hearing may from time to time be adjourned by the president of the special court concerned to such date, time and place as he may deem fit. (9) The sittings of a special court shall be held in public, but the president of the court may exclude from being present thereat or direct to withdraw therefrom any person whose attendance is not necessary. (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. (11) The decision of the majority of the members of 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. (12) An order in relation to costs made by a special court shall have effect and may be enforced as if it had been given in the course of proceedings before the division of the High Court referred to in subsection (2). (13)(a) The decision of a special court shall be subject to appeal. (b) 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. (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— (a) an amendment made under section 12(4)(d); (b) 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. (15) Sections 84 and 85 of the Income Tax Act, 1962 (Act No. 58 of 1962), and the regulations made under the said section 84, shall mutatis mutandis apply with reference to a special court. 14. Preservation of secrecy (1) No person shall, except - (a) for the purposes of - (i) the performance of his or her functions in terms of this Act; or(ii) legal proceedings under this Act; (b) 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. (2) Any person who contravenes subsection (1) shall be guilty of an offence.

15. Penalties - A person shall be liable on conviction of-- (a) an offence under section 6(3) or 8(7), to a fine not exceeding R20 000 or to imprisonment for a period not exceeding two years or to both that fine and that imprisonment; (b) an offence under section 12(7) in relation to a notice published in the Gazette, or under section 11(3), to a fine not exceeding R200 000 or to imprisonment for a period not exceeding five years or to both that fine and that imprisonment; (c) Any other offence under this Act, to a fine not exceeding R4 000 or to imprisonment for a period not exceeding 12 months or to both that fine and that imprisonment. 16. Regulations - (1) The Minister may on the recommendation of the committee by notice in the Gazette make regulations - (a) prohibiting or regulating any act, conduct or practice in connection with the use of trade coupons; (b) prescribing the procedure to be observed in connection with the conduct and hearing of appeals in terms of section 13; (c) regarding any matter which in terms of this Act is required or permitted to be prescribed by regulation; (d) regarding any matter which he considers it necessary to prescribe in order to give effect to the objects of this Act. (2) A regulations may prescribe penalties for a contravention thereof or failure to comply therewith, not exceeding a fine of R4 000 or imprisonment for a period of 12 months. 17. Limitation of liability - No person, including the State, shall be liable in respect of anything done in good faith under this Act. 18. Application to State - This Act shall bind the State, except in so far as criminal liability is concerned. 19. Civil remedies not excluded -

(1) No provision of this Act shall be construed as depriving any person of any civil remedy. (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. 20. Repeal of Act 76 of 1976, and savings - (1) The Trade Practices Act, 1976, is hereby repealed, subject to subsection (2). (2) The repeal of sections 1, 9, 10, 13 and 19 of the Trade Practices Act, 1976, shall come into operation on a date fixed by the Minister by notice in the Gazette. (3) Subject to subsection (4), a notice published under the Trade Practices Act, 1976, shall remain in force until that notice is amended or withdrawn by the Minister. (4) Government Notice R.338 of 15 February 1985 is hereby withdrawn. 21. Short title-- This Act shall be called the Consumer Affairs (Unfair Business Practices) Act, 1988. NOTE: Application of Act 71 of 1988 throughout Republic the principal Act applies throughout the Republic. Short title This Act is called the Harmful Business Practices Amendment Act, 1999.