- Government
Gazette
14665
-
STATE
PRESIDENT'S
OFFICE
-
- No.
458
-
19
March
1993
-
- It
is
hereby
notified
that
the
State
President
has
assented
to
the following
Act
which
is
hereby
published
for
general
information:-
-
NO.
33
OF
1993:
HARMFUL
BUSINESS
PRACTICES
AMENDMENT
ACT,
1993
-
- GENERAL
EXPLANATORY
NOTE:
-
- Words
in
bold
type
indicate
omissions
from
existing
enactments.
Words
in
italics
indicate
insertions
in
existing
enactments.
-
ACT
-
- 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.)
-
- BE
IT
ENACTED
by
the
State
President
and
the
Parliament
of
the
Republic of
South
Africa,
as
follows:-
-
- Amendment
of
section
1
of
Act
71
of
1988
-
- 1.
Section
1
of
the
Harmful
Business
Practices
Act,
1988
(hereinafter
referred
to
as
the
principal
Act),
is
hereby
amended
by
the
insertion
after the
definition
of
"business
practice"
of
the
following
definition:
"'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.
Section
2
of
the
principal
Act
is
hereby
amended-
-
(a)
by
the
substitution
for
subsection
(2)
of
the
following
subsection:
"(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.
-
- (b)
The
Minister
shall
determine
whether
a
member
of
the
committee
shall
be
a
full-time
or
a
part-time
member.";
and
-
(b)
by
the
substitution
for
subsection
(3)
of
the
following
subsection:
"(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.
The
following
section
is
hereby
inserted
in
the
principal
Act
after section
3:
-
- "Liaison
committees
-
- 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.
-
- (b)
A
liaison
committee
shall
consist
of
the
number
of
members
determined
by
the
chairman.
-
- (2)
A
member
of
a
liaison
committee-
-
- (a)
shall
be
appointed
for
such
period,
but
not
exceeding
three
years,
as
the
chairman
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
within
the
concurrence
of
the
Minister
of
State
Expenditure;
-
- (c)
shall
vacate
his
office
if
he
resigns
as
a
member
or
if
the
chairman
at
any
time
terminates
his
period
of
office
as
a
member
because
in
the
opinion
of
the
chairman
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
chairman
and
vice-chairman
of
a
liaison
committee
shall
be
designated
by
the
chairman.
-
- (4)
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.
-
- (5)
(a)
The
meetings
of
a
liaison
committee
shall
be
held
at
such
times
and
places
as
the
chairman
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.".
-
- Amendment
of
section
4
of
Act
71
of
1988,
as
substituted
by
section
2
of
-
Act
64
of
1991
-
- 4.
Section
4
of
the
principal
Act
is
hereby
amended
by
the
substitution
for paragraph
(a)
of
subsection
(1)
of
the
following
paragraph:
-
- "(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.
Section
6
of
the
principal
Act
is
hereby
amended
by
the
substitution
for subsection
(2)
of
the
following
subsection:
-
- "(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.
Section
8
of
the
principal
Act
is
hereby
amended-
-
- (a)
by
the
deletion
of
paragraph
(c)
of
subsection
(1);
-
- (b)
by
the
substitution
for
subsections
(2)
and
(3)
of
the
following
subsections,
respectively:
-
- "(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)
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.";
-
- (c)
by
the
substitution
for
subsection
(5)
of
the
following
subsection:
"(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 three
Six
months
referred
to
in
subsection
(3),
-
such
action
as
in
the
opinion
of
the
Minister
shall
be
taken to
stay
or
prevent
any
harmful
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-
- which the
-
- the takes
-
- movable
-
- (aa)
attach
any
money
or
other
property
whether
movable
or
immovable
which
is
related
to
such
investigation
and
-
is
held
by
any
person
on
account
or
on
behalf
of
or
for
benefit
of
a
person
mentioned
in
the
notice,
or
of
a
-
customer,
debtor
or
creditor
of
the
person
mentioned
in
-
- notice,
until
a
curator
referred
to
in
section
12(2)
-
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
-
- 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.";
and
-
(d)
by
the
substitution
for
subsection
(6)
of
the
following
subsection:
"(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.
Section
9
of
the
principal
Act
is
hereby
amended
by
the
substitution
for subsection
(1)
of
the
following
subsection:
-
- "(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.
Section
12
of
the
principal
Act
is
hereby
amended-
(a)
by
the
deletion
of
paragraph
(a)
of
subsection
(1);
-
(b)
by
the
addition
after
paragraph
(c)
of
subsection
(1)
of
the
-
following
paragraph:
-
- "(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.";
-
(c)
by
the
substitution
for
subsection
(2)
of
the
following
subsection:
"(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
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.
-
- (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
harmful
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
harmful
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
harmful
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
harmful
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
harmful
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
harmful
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
harmful
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
harmful
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
harmful
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
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
-
- (ii) the
curator
shall
recover
and
take
possession
of
all
the
assets
of
the
person
involved
in
the
harmful
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
interests
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
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
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.
-
- (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.";
and
-
- (d)
by
the
deletion
of
subsection
(3).
Amendment
of
section
13
of
Act
71
of
1988
-
9.
Section
13
of
the
principal
Act
is
hereby
amended-
-
(a)
by
the
substitution
for
subsection
(1)
of
the
following
subsection:
"(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.";
-
- (b)
by
the
substitution
for
subsection
(13)
of
the
following
subsection:
-
- "(13)
(a)
The
decision
of
a
special
court
shall
not
be subject
to
review
by
or
appeal
to
any
court
of
law
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.".
-
- Short
title
-
- 10.
This
Act
shall
be
called
the
Harmful
Business
Practices
Amendment
-
Act,
1993.
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