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

Companies Regulations, 2011

Chapter 7 : Complaints, Applications and Tribunal Hearings

Part D : Commission or Panel Complaint and Investigation Procedures

138. Resolving complaints by proposed consent order

 

 

See sections 170 (1)(d) and 173

 

(1) If, at any time before concluding its consideration of a complaint, the Commission believes that the respondent may be prepared to agree terms of a proposed order, the Commission may—
(a) notify the complainant, in writing, that a consent order may be recommended; and
(b) invite the complainant to inform the Commission in writing within 10 business days after receiving that notice—
(i) whether the complainant is prepared to accept damages or an alternative remedy under such an order; and
(ii) if so, the amount of damages claimed or particulars of the alternative remedy.

 

(2) If the Commission and the respondent agree the terms of an appropriate order, the Commission must—
(a) refer the complaint to the High Court in accordance with its Rules;
(b) attach to the referral—
(i) a draft order in a form consistent with the High Court Rules, and—
(aa) setting out each section of the Act or of a company's Memorandum of Incorporation or Rules that has been contravened;
(bb) setting out the terms agreed between the Commission and the respondent, including, if applicable, the amount of damages agreed between the respondent and the complainant; and
(cc) signed by the Commission and the respondent indicating their consent to the draft order; and
(ii) a Consent to Order in Form CoR 138, completed by the complainant, if applicable; and
(c) serve a copy of the referral and draft order on the respondent and the complainant.

 

(3) The Commission must not include an order of damages in a draft consent order unless the complainant expressly consented that order for damages in Form CoR 138.

 

(4) A draft consent order may be submitted to the Court in terms of section 173 and this Rule notwithstanding the refusal by a complainant to consent to including an award of damages in that draft order.