| (1) |
If a panel is satisfied that a respondent has contravened or failed to comply with this Act and— |
| (a) |
the respondent did not admit as contemplated in section 103; or |
| (b) |
if the panel and the respondent could not agree on the appropriate amount of a penalty in terms of that section; or |
| (c) |
if the respondent has paid the penalty imposed under section 103(1)(a) but failed to take the remedial action instructed under section 103(1)(b), |
the enforcement committee may cause to be delivered by hand to that respondent a written notice that must contain the particulars contemplated in subsection (2).
| (2) |
A notice referred to in subsection (1) must— |
| (a) |
specify the name and address of the respondent; |
| (b) |
specify the particulars of the contravention or failure; |
| (c) |
set out the reasons for the panel’s decision to impose an administrative penalty; |
| (d) |
specify the amount of the administrative penalty which the panel considers appropriate in the circumstances, and may, if necessary, contain an instruction to the respondent to take any remedial action as contemplated in section 94(c); |
| (e) |
inform the respondent that within the period specified in the notice the respondent may— |
| (i) |
pay the administrative penalty and take the instructed remedial action, if such an instruction was issued; or |
| (ii) |
appeal in terms of section 111 against the imposition of the administrative penalty and the instruction to take remedial action, if such instruction was issued, to the board of appeal; and |
| (f) |
state that a failure to comply with the requirements of the notice within the time permitted will result in the proceedings contemplated in subsection (3). |
| (3) |
If the respondent fails to comply with the requirements of a notice referred to in subsection (2), the registrar may file with the clerk or registrar of any competent court a statement certified as correct, stating the amount of the administrative penalty imposed on the respondent and the contents of the instruction, and such statement thereupon has all the effects of a civil judgment lawfully given in that court in favour of the board. |
| (4) |
If a respondent is a member of the controlling body of a regulated person, the panel may direct that an administrative penalty imposed under section 103(1)(a) or subsection (2) be paid by the respondent in his or her personal capacity. |
| (5) |
A panel may make such an order for the payment of the costs of the proceedings of the enforcement committee as it may consider fair in the circumstances of each case. |
| (6) |
The enforcement committee may not impose a penalty contemplated in this section if the respondent has been charged with a criminal offence in respect of the same set of facts. |
| (7) |
If a court assesses the penalty to be imposed on a person convicted of an offence in terms of this Act, the court must take into account any administrative penalty imposed under this section or section 103(1)(a) in respect of the same set of facts. |
| (8) |
An administrative penalty imposed and paid in terms of this section does not constitute a previous conviction as contemplated in Chapter 27 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977). |
| (9) |
When determining an appropriate administrative penalty a panel must consider the following factors: |
| (a) |
The nature, duration, seriousness and extent of the contravention or failure; |
| (b) |
the extent to which the contravention or failure was deliberate or reckless; |
| (c) |
any loss or damage suffered as a result of the contravention or failure; |
| (d) |
the level of profit derived from the contravention or failure; |
| (e) |
whether the respondent has previously been found in contravention of this Act; |
| (f) |
any other factor that the panel considers relevant. |
Protection of Businesses Act, 1978
