| (1) |
If, after due consideration of the report of the investigation officer referred to in regulation 28(8) or 28(12), the Board is satisfied that sufficient grounds exist for the institution of a formal inquiry into the complaint or suspicion, it must— |
| (a) |
notify the person referred to in regulation 28(8)(c) or 28(12)(a), in this regulation hereafter referred to as the respondent, in writing— |
| (i) |
of its decision to institute a formal inquiry; |
| (ii) |
of the details and nature of the complaint or suspicion that was investigated and the charges; |
| (iii) |
that the respondent must, within 21 days after receipt of the notification, in writing— |
| (aa) |
admit or deny the charges; and |
| (bb) |
indicate whether he or she requests the assistance of an interpreter; |
| (b) |
attach an extract of Part V of these Regulations to the notice referred to in paragraph (a); and |
| (c) |
appoint a committee as contemplated in subregulation (6), hereafter referred to as the investigating committee. |
| (2) |
If the charges referred to in subregulation (1)(a)(ii) relate to a possible transgression of section 18 of the Act, the Board must serve a copy of that notice on the client or employer with whom the respondent has entered into, or attempted to enter into a contract to perform the construction works concerned. |
| (3) |
The Board must, after the expiry of the 21 day period referred to in subregulation (1)(a)(iii), notify the respondent in writing— |
| (a) |
of the date, time and place where the formal inquiry will be held by the investigating committee, irrespective of whether the respondent replied to the notice or not, or whether he or she admitted or denied the charges; |
| (b) |
that should the respondent fail to appear, the Board may request the investigating committee to take cognizance of the evidence in the respondent's absence; |
| (c) |
that should the investigating committee grant the Board's request contemplated in paragraph (b), the Board may submit the evidence to the investigating committee; and |
| (d) |
that the Board may request the investigating committee to make a finding in the respondent's absence based on the evidence at hand and to decide on an appropriate sanction. |
| (4) |
The investigating committee may find the respondent guilty of the charge and sanction him or her in accordance with subregulation (15) without hearing any evidence if the respondent admits that he or she is guilty of the charge as contemplated in subregulation (1)(a)(ii) and— |
| (a) |
provides mitigating circumstances to the investigating committee; or |
| (b) |
if the respondent does not provide mitigating circumstances to the investigating committee, but the investigating committee is satisfied that a reasonable time had lapsed for the respondent to provide mitigating circumstances and the respondent had not done so despite being notified that the proceedings may continue in his or her absence if he or she fails to provide the investigating committee with mitigating circumstances. |
| (5) |
If the respondent, after being duly notified by the Board as contemplated in subregulation (3), fails to attend the proceedings, the investigating committee may proceed with the formal inquiry in the absence of the respondent if— |
| (a) |
there is no information at the disposal of the investigating committee to show sufficient cause for the respondent's failure to attend the proceedings; |
| (b) |
the Board and the respondent had not reached an agreement regarding motion proceedings; and |
| (c) |
it is fair, reasonable and in the interest of justice to do so in the circumstances. |
| (6) |
The investigating committee appointed by the Board in terms of subregulation (1)(c) must consist of at least— |
| (a) |
two persons who have expertise in the fields relevant to the inquiry; and |
| (b) |
a person qualified in law, who must act as the chairperson of the investigating committee. |
| (7) |
The investigating committee may, for the purposes of this regulation, appoint a person to assist it in the performance of its functions. |
| (a) |
The investigating committee may, subject to section 29 of the Act, for the purposes of a formal inquiry, subpoena any person— |
| (i) |
who may be able to give material information concerning the subject of the formal inquiry; or |
| (ii) |
who it suspects or believes has in his or her possession or custody or under his or her control any book, document or object which has any bearing on the subject of the formal inquiry, to appear before the investigating committee at the time and place specified in the subpoena, to be questioned or to produce that book, document or object. |
| (b) |
A subpoena issued in terms of paragraph (a), must— |
| (i) |
be in the form as shown in Schedule 4; |
| (ii) |
be signed by the chairperson of the committee or, in his or her absence, any member of the committee; and |
| (iii) |
be served on the person concerned as contemplated in regulation 32D. |
| (9) |
The investigating committee may retain a book, document or object produced in terms of subregulation (8) for the duration of the formal inquiry. |
| (10) |
The chairperson of the investigating committee may, at the formal inquiry, call upon and administer an oath or take an affirmation from any witness who was subpoenaed in terms of subregulation (8). |
| (a) |
The investigating committee may, subject to paragraph (b), permit any information it requires to discharge its duties in terms of this Part, including evidence on mitigating and aggravating circumstances, to be brought to its attention through a process similar to motion proceedings (excluding ex parte applications). |
| (b) |
The investigating committee may only permit a process similar to motion proceedings— |
| (i) |
if the Board and the respondent or his or her representative agree thereto; |
| (ii) |
if there is not a real dispute between the Board and the respondent or his or her representative, relating to any material question of fact; and |
| (iii) |
in respect of those relevant facts which is not in real dispute. |
| (c) |
The decision of the investigating committee to permit a process similar to motion proceedings does not prevent the investigating committee, Board or respondent or his or her representative, from permitting, requesting or insisting, as the case may be, that verbal evidence be led on facts pertaining to a dispute between the Board and the respondent and his or her representative. |
| (d) |
Despite this subregulation, the investigating committee may only permit alternative dispute resolution proceedings if the principles of natural justice will not be compromised. |
| (12) |
At a formal inquiry the respondent— |
| (i) |
may personally be present at the inquiry of the proceedings; |
| (ii) |
may be assisted or represented by another person in conducting the proceedings; |
| (iii) |
may request the assistance of an interpreter; |
| (iv) |
has the right to be heard; |
| (vi) |
may cross-examine any person called as a witness in support of the charge; |
| (vii) |
may have access to documents produced in evidence; |
| (viii) |
may call anyone to produce any book, document or object in his or her possession or custody or under his or her control; and |
| (ix) |
may advance arguments in support of his or her defence; |
| (i) |
may admit at any time before the investigating committee gives its verdict, that he or she is guilty of the charge referred to in subregulation (1)(a)(ii), despite the fact that he or she may have denied responsibility in terms of subregu!ation (1)(a)(iii); and |
| (ii) |
may, in the case where he or she makes an admission in terms of subparagraph (i), be found guilty of the charge referred to in subregulation (1)(a}(ii); and |
| (c) |
may, in the event of him or her being found guilty in terms of subregulation (15)(a), present mitigating circumstances to the investigating committee by addressing the investigating committee, calling witnesses or presenting facts to the investigating committee through any process permitted by the investigating committee. |
| (a) |
A witness in a formal inquiry may not— |
| (i) |
without sufficient cause, fail to attend the inquiry at the time and place specified in the subpoena; |
| (ii) |
refuse to be sworn in or to be affirmed as a witness; |
| (iii) |
without sufficient cause, fail to answer fully and satisfactorily to the best of his or her knowledge to all questions lawfully put to him or her; or |
| (iv) |
fail to produce any book, document or object in his or her possession or custody or under his or her control which he or she has been required to produce. |
| (b) |
A witness in a formal inquiry must— |
| (i) |
remain in attendance until excused by the investigating committee from further attendance; |
| (ii) |
appear at a later date and time to continue with his or her testimony, as warned by the investigating committee. |
| (c) |
The law relating to privilege, as applicable to a witness subpoenaed to give evidence or to produce a book, document or object in a civil trial before a court of law applies with the necessary changes, to the examination of, or the production of any book, document or object to the investigating committee by, a witness in the formal inquiry. |
| (d) |
The record of evidence which has a bearing on the charge before the committee and which was presented before any commission which investigated an event or conduct is admissible without further evidence being led if— |
| (i) |
the record is accompanied by a certificate from the chairperson of that commission; and |
| (ii) |
the certificate certifies that the investigation was lawful, reasonable and procedurally fair. |
| (14) |
If the respondent has been found guilty of a criminal offence in a court of law and the conduct with which the respondent is charged with in terms of subregulation (1)(a)(ii) is an element or the subject matter of that criminal offence, a copy of the record of the criminal proceedings, certified in terms of section 235 of the Criminal Procedure Act, 51 of 1977, is sufficient proof of the commission by the respondent of that offence, if it is proven that— |
| (a) |
the respondent is the same person who was convicted of that criminal offence; and |
| (b) |
no appeal or review proceedings in terms of Chapters 30 and 31 of the Criminal Procedure Act, 1977, are pending against the criminal judgement of the court which convicted the respondent of that criminal offence. |
| (a) |
After the conclusion of the formal inquiry the investigating committee must within 30 days make a finding as to whether the respondent is guilty of the charges brought against him or her in terms of subregulation (1)(a)(ii). |
| (b) |
If the investigating committee finds the respondent guilty in terms of paragraph (a), the investigating committee must— |
| (i) |
inform the respondent of the finding and clearly state the reasons for the finding; |
| (ii) |
take cognizance of any aggravating or mitigating circumstances; and |
| iii) |
sanction the respondent as contemplated in subregulation (18). |
| (16) |
The investigating committee may postpone the formal inquiry at any time before passing sanction, if it is reasonable and justifiable in the circumstances to do so. |
| (a) |
Where the investigating committee consists of more than three members, and certain members do not agree with the investigating committee's finding, the decision of the majority of the members is the finding of the investigating committee. |
| (b) |
If the investigating committee consists of an even number of members and there is a split decision on any finding, the Chairperson has an additional deciding vote. |
| (18) |
The sanctions which the investigating committee may impose include— |
| (a) |
ordering the removal of the name of a contractor from the register in accordance with section 19 of the Act where the charge relates to a transgression of section 18(1) of the Act; |
| (b) |
issuing a warning to the respondent, which warning remains valid for a period not exceeding one year; |
| (c) |
downgrading the respondent's current contractor grading designation in the register by a maximum of two grades, for a period determined by the investigating committee; |
| (d) |
imposing a fine not exceeding R100 000.00 on the respondent; |
| (e) |
restricting or prohibiting the respondent from participating in public sector construction works procurement for a period of time, which period may not exceed 10 years; |
| (f) |
ordering the cancellation of the registration of the respondent and placing a prohibition on the re-application for registration by the respondent as contemplated in subregulation (21); |
| (g) |
making a cost determination that the accused, the Board or the party who initiated the investigation, must defray all or part of the costs incurred to conduct the formal inquiry; |
| (h) |
ordering any specific performance relevant to the charges brought against the respondent in terms of subregulation (1)(a)(ii); and |
| (i) |
any combination of the sanctions referred to in paragraphs (a) to (h). |
| (19) |
When imposing a fine as contemplated in subregulation (18)(d) the investigating committee may determine the date on which that fine must be paid by the respondent, or the period of repayment and the amount of interim payments permitted. |
| (20) |
Where the respondent on whom the committee has imposed a fine was downgraded as contemplated in subregulation (18)(c) or restricted or prohibited as contemplated in subregulations (18)(e) or (f), the committee may determine that the period of being downgraded or the period of restriction or prohibition be extended if the fine has not been paid on the date determined in terms of subregulation (19), until that fine is paid, but that extension may not exceed the period for which the contractor was downgraded or the period of 10 years as contemplated in subregulation (18)(e). |
| (21) |
Any fine imposed by the investigating committee in terms of subregulation (18)(d) must be paid into the bank account of the Board. |
| (a) |
If the investigating committee imposes a sanction as contemplated in subregulation (18)(f) it must determine the period for which the respondent may not re-apply for registration, which period may not be longer than five years after the date of the imposition of the sanction. |
| (b) |
A prohibition of the investigating committee referred to in paragraph (a) includes an application from the respondent under a legal entity different to the one that had been found guilty. |
| (23) |
The investigating committee must, within a reasonable period after passing the sanction, notify the respondent— |
| (a) |
of his or her right to judicial review of the finding and sanction of the investigating committee in terms of section 6 of the Promotion of Administrative Justice Act, 3 of 2000; and |
| (b) |
in terms of Chapter 3 of the Regulations on Fair Administrative Procedures issued in terms of the Promotion of Administrative Justice Act, 2000— |
| (i) |
of his or her right to request reasons for any of the investigating committee's actions in terms of section 5 of the Promotion of Administrative Justice Act, 2000; and |
| (ii) |
any other information stipulated in Chapter 3 of the Regulations on Fair Administrative Procedures. |
| (24) |
Subject to subregulation (25) any finding or sanction imposed in terms of this regulation comes into effect immediately and the Board must, if applicable, within 5 working days after the hearing has been concluded, update the register of contractors to reflect the outcome of the hearing. |
| (25) |
If any judicial review is instituted in terms of the Promotion of Administrative Justice Act, 2000, |
| (a) |
the respondent must notify the Board of that review; |
| (b) |
the finding or sanction imposed in terms of this regulation is suspended from the date that the judicial review comes to the notice of the Board until that review has been finalized by a court of law; and |
| (c) |
if that court sets aside, varies or amends the finding and sanction of the investigating committee, the Board must, if applicable, amend the register accordingly within seven working days after notification of the decision of that court. |
| (26) |
The Board must publish the details of the finding and sanction of the investigating committee in the Gazette and if applicable, update the register of contractors accordingly. |
| (27) |
Any contractor whose registration is endorsed as a result of the findings of the investigating committee must in any subsequent application for registration as a contractor disclose such endorsement and any applicant who fails to disclose such endorsement, is guilty of an offence. |
| (28) |
A contractor whose registration is downgraded by the investigating committee in terms of subregulation (18)(c)— |
| (a) |
may, after the period of downgrading ordered by the investigating committee, apply for the original grading or another or higher grading; and |
| (b) |
must disclose in the application referred to in paragraph (a) the grade from and to which he or she was downgraded, and any applicant who fails to disclose such downgrading is guilty of an offence. |
[Regulation 29 substituted by regulation 25 of Notice No. 1224 dated 14 November 2008]
Contingency Fees Act, 1997
