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Companies Act, 2008 (Act No. 71 of 2008)

Chapter 7 : Remedies and Enforcement

Part D : Complaints to Commission or Panel

171. Issuance of compliance notices

 

 

1) Subject to subsection (3), the Commission, or the Executive Director of the Panel, may issue a compliance notice in the prescribed form to any person whom the Commission or Executive Director, as the case may be, on reasonable grounds believes—
a) has contravened this Act; or
b) assented to, was implicated in, or directly or indirectly benefited from, a contravention of this Act,

unless the alleged contravention could otherwise be addressed in terms of this Act by an application to a court or to the Companies Tribunal.

 

2) A compliance notice may require the person to whom it is addressed to—
a) cease, correct or reverse any action in contravention of this Act;
b) take any action required by this Act;
c) restore assets or their value to a company or any other person;
d) provide a community service, in the case of a notice issued by the Commission; or
e) take any other steps reasonably related to the contravention and designed to rectify its effect.

 

3) When issuing a notice in terms of subsection (1) to a regulated person or entity, the Commission or Executive Director, as the case may be, must send a copy of the notice to the regulatory authority that granted a licence or similar authority to that regulated person or entity, and in terms of which that person is authorised to conduct business.

 

4) A compliance notice contemplated in subsection (1) must set out—
a) the person or association to whom the notice applies;
b) the provision of this Act that has been contravened;
c) details of the nature and extent of the non-compliance;
d) any steps that are required to be taken and the period within which those steps must be taken; and
e) any penalty that may be imposed in terms of this Act if those steps are not taken.

 

5) A compliance notice issued in terms of this section, or any part of it, remains in force until—
a) it is set aside by—
i) the Companies Tribunal, or a court upon a review of the notice, in the case of a notice issued by the Commission; or
ii) the Takeover Special Committee, or a court upon a review of the notice, in the case of a notice issued by the Executive Director; or
b) the Commission, or Executive Director, as the case may be, issues a compliance certificate contemplated in subsection (6).

 

6) If the requirements of a compliance notice issued in terms of subsection (1) have been satisfied, the Commission or the Executive Director, as the case may be, must issue a compliance certificate.

 

7) If a person to whom a compliance notice has been issued fails to comply with the notice, the Commission or the Executive Director, as the case may be, may either—
a) apply to a court for the imposition of an administrative fine; or
b) refer the matter to the National Prosecuting Authority for prosecution as an offence in terms of section 214(3),

but may not do both in respect of any particular compliance notice.