| (1) |
In the event that the Council has received information that a home builder may be guilty of anything contemplated in section 11(1) of the Act, the Council must investigate the matter. |
| (2) |
The Council must investigate the charges contemplated in subregulation (1) in terms of its complaints procedures prescribed in terms of section 7(1)(vi) and (vii) of the Act. |
| (3) |
Following the investigations contemplated in subregulation (2), should the Council be of the view that there has been a contravention contemplated in section 11(1) of the Act that requires disciplinary action, the Council must notify the home builder in terms of section 24 of the Act— |
| (a) |
that the matter has been referred to the committee; |
| (b) |
of the charge against the home builder, with reference to the relevant provision allegedly contravened as contemplated in section 11(1) of the Act; |
| (c) |
of the implications for the home builder should the home builder be found guilty; |
| ( d) |
of the home builder's right, within 30 days as from notification, to make representations to the committee in the form of a sworn affidavit setting forth its position, or any comments on the charges, but that the home builder is not obliged to do so and that any such affidavit or comments may be used as evidence at the enquiry; |
| (e) |
of the home builder's right to be represented by or accompanied by an adviser; and |
| (f) |
that should the home builder wish to plead guilty to the charge, the home builder may— |
| (i) |
furnish the committee within 30 days with an affidavit setting forth any mitigating |
circumstances; or
| (ii) |
request an opportunity to lead evidence in mitigation; |
and must provide the home builder with a copy of these rules and any affidavits contemplated in subregulation (4).
| (4) |
The Council must have affidavits prepared setting out the facts pertaining to the charge and details of the nature and results of any investigation undertaken by the Council and forward a copy of the notice in terms of subregulation (3) and those affidavits to the committee, who, subject to any comments contemplated in the affidavit submitted in terms of subregulation (3)(d) may determine that— |
| (a) |
the charge does not disclose a contravention contemplated in section 11(1) of the Act; |
| (b) |
based on the facts set out in the affidavit, there is no reasonable prospect of proving the charge against the home builder; |
| (c) |
the matter is of a petty nature and does not require disciplinary sanction; or |
| (d) |
that the charge is competent and that an inquiry should be held. |
| (5) |
The Council may at any time before a decision contemplated in subregulation (4) has been taken, withdraw a charge and notify the home builder and the affected housing consumer accordingly, and may re-open the matter thereafter should new evidence become available which may justify such an action. |
| (6) |
In the event of the committee concluding as contemplated in subregulation (4)(a), (b) or (c), the committee must acquit the home builder and the Council must notify the home builder and any affected consumer accordingly. |
| (7) |
Should the home builder in its comments, contemplated in subregulation (3)(d), admit that the home builder performed or failed to perform any act as charged and the committee is satisfied that such act or omission constitutes a contravention contemplated in section 11(1) of the Act, the committee must after considering the contents of the affidavits contemplated in subregulations (3) and (4), determine the penalty to be imposed and must notify the home builder and any affected housing consumer— |
| (a) |
that it finds the home builder guilty of the charge; and |
| (b) |
of the penalty it has imposed on the home builder. |
| (8) |
In the event of a home builder pleading not guilty and the charge not being disposed of in terms of subregulation (4), the Council must summon the home builder to appear before the committee at a time and place specified in the summons for the purpose of an inquiry. |
| (9) |
The committee must make its findings based on the balance of probabilities. |
| (10) |
In the pleading of a charge, the home builder may in addition to any other plea, plead that it has previously been found guilty or not guilty on the charge. |
| (11) |
In the event of criminal proceedings being instituted against the home builder in terms of section 21 of the Act, the committee must, in determining the penalty for contravention, have regard to any sentence imposed by a competent court and bear in mind the cumulative effect of any penalty and any such sentence to avoid double jeopardy. |
| (12) |
A court in imposing any sentence in terms of section 21 of the Act shall similarly have regard to any penalty imposed by the committee. |
Housing Development Agency Act, 2008
