| (a) |
may on recommendation of the Ombud, by notice in the Gazette, declare certain practices in relation to small enterprises to be prohibited unfair trading practices; |
| (b) |
may, subject to subsections (2) to (4), instruct that a comprehensive investigation be undertaken by the Ombud into an alleged unfair trading practice on recommendation by the Ombud; |
| (c) |
must consult with the Minister responsible for trade, industry and competition before issuing a notice contemplated in paragraph (a); and |
| (d) |
must, in the performance of a function in terms of this section, consult with any Minister responsible for a national function affected by the performance of that function. |
| (2) |
Small enterprises have the right to trade and transact freely, including— |
| (a) |
the right to unambiguous business contract; |
| (b) |
the right to a reasonable payment date and interest on late payments; |
| (c) |
the right to disclosure of relevant information; and |
| (d) |
the right to accountability from large enterprises and government entities. |
| (3) |
The following principles must guide the Minister and the Ombud in considering whether or not a declaration contemplated in subsection (1) may be made— |
| (a) |
that the practice concerned, directly or indirectly, has or is likely to have the effect of— |
| (i) |
harming the sustainability and competitiveness of small enterprises; |
| (ii) |
unreasonably prejudicing any small enterprise; |
| (iii) |
deceiving any small enterprise; or |
| (iv) |
unfairly affecting any small enterprise; and |
| (b) |
that if the practice is allowed to continue, one or more objects of this Act will, or is likely to be defeated. |
| (4) |
Before making a declaration contemplated in subsection (1), the Minister must— |
| (a) |
by notice in the Gazette— |
| (i) |
publish an intention to make the declaration and give reasons therefor; |
| (ii) |
indicate where a copy of the draft declaration may be obtained; and |
| (iii) |
invite interested persons to make written representations in relation thereto, so as to reach the Minister within the time stipulated in the notice after the date of the publication of that notice; and |
| (b) |
consider any representations received in terms of paragraph (a)(iii). |
| (5) |
An affected party may not, on or after the date of the publication of a notice referred to in subsection (1), carry on the practice concerned. |
| (6) |
The Ombud may direct a party who, on or after the date of the publication of a notice referred to in subsection (1), carries on the practice concerned in contravention of that notice, to rectify, to the satisfaction of the Ombud, any harm which was caused by, or arose out of, the carrying on of the practice concerned. |
| (7) |
Any party who, under subsection (6), is directed to rectify any harm, must do so within 60 business days after such direction is issued. |
| (8) |
The Ombud may, after affording the party concerned a reasonable opportunity to make representations, impose an administrative penalty in the amount prescribed by the Minister for any contravention of subsection (5) or failure by the party concerned to comply with subsection (6), read with subsection (7). |
Section 17Y inserted by section 5 of the National Small Enterprise Amendment Act, 2024 (Act No. 21 of 2024), GG50965, Notice No. 5049, dated 23 July 2024]
Protection of Businesses Act, 1978
