Report 66 Business Practices Committee3. Various discussions with and over Omega |
On 11 February 1998 officials of the Committee visited the headquarters of Omega at its offices in Silverton. This visit was followed by a great number of discussions between officials, the Committee and representatives of Omega and other events. This is borne out by the following.
The Committee confirmed the preliminary investigation instituted in terms of section 4(1)(c) (2) of the Harmful Business Practices Act, 71 of 1988 (the Act), into the business practices of Omega, OPM, vR and vZ.
Further discussions between officials and VR at Omega's offices.
Still further discussions between officials and VR in Silverton.
vR and vZ addressed the Committee. vR undertook to furnish the Committee with certain documents and the Committee resolved to again look into the detail of the scheme.
More discussions between officials and vR at the offices of Omega.
Discussions between officials and vR and vZ in Silverton.
Mr. Leon Louw, Executive Director of the Free Market Foundations, Mr. Ray Hawkins (Hawkins), financial manager of Omega, and vR addressed the Committee. Alter the address by the representatives of Omega the Committee resolved to undertake a section 8(1)(a) investigation in terms of the Act into the business practices of Omega, OPM, vR and vZ.
Another round of discussions between officials and vR and vZ took place in Silverton.
At a meeting of the Committee it was resolved that arrangements be made to grant Omega the opportunity to address the Committee during a formal hearing that was to be held at the next meeting of the Committee on 18 June 1998.
The Committee was addressed by vR, Hawkins and Mr. T Hawkins, Omega's training manager. The Committee resolved that additional information be obtained from Omega and circulated to the members of the Committee within fourteen days.
Officials held discussions with vR and Hawkins in Silverton.
Still further discussions between officials and vR were held at the offices of Omega.
At a meeting of the Committee it was resolved to grant Omega yet a further opportunity in terms of the audi alteram partem rule to respond within two weeks to the Committee's concerns in relation to the apparent harmful business practice of Omega's business. The Committee resolved to then consider the response by Omega and to debate the issue whether it should pursue the investigation in terms of section 8(1)(a) of the Act.
The Committee resolved that the attorneys of Omega be informed that the impending notice of the investigation were to be published on 11 September 1998.
vR, in his capacity as co-trustee of Omega and CPM brought an application for an interdict against the Minister of Trade and Industry NO and Louise Arlene Tager NO from preventing the Committee to proceed with the publication of the notice of a section 8(1)(a) investigation. The main thrust of the argument was that certain provisions of the Act were unconstitutional
Judge van Dijkhorst made the following order (3) (directly translated from the Afrikaans) regarding the application by vR and OPM:
| 1) | "Sections 7(3) and 8(5)(a) of the Harmful Business Practices Act 71 of 1988 are declared invalid. |
| 2) | The retrospective effect of the above order is limited. The validity of the above order Is limited. The invalidity will apply only from the date of confirmation thereof by the Constitutional Court In terms of section 172(2)(a) of the Constitution. |
| 3) | Apart from the order in paragraph 1 above, the application is denied. |
| 4) | Each party is to bear its own costs". |
Notice 2725 of 1998 appeared in Government Gazette 18456. This Notice read as follows:
"In terms of the provisions of section 8(4) of the Harmful Business Practices Act, 1988 (Act No 71 of 1988), notice is hereby given that the Business Practices Committee intends undertaking an Investigation in terms of section 8(1)(a) of the said Act into the business practices of--
Omega Trust, Gerhardus Francois Janse van Rensburg (ID 600807 5038 007), Jan Frederick Olivier van Zyl (ID 590614 5091 008), Omega Power Marketing CC (97/22391/230), and any member, employee, agent and/or representative of any of the aforementioned in respect of the activities of Omega Trust and/or Power Marketing CC".
vR applied for leave to appeal against the finding of the judgement by Judge van Dijkhorst.
The Director: National Consumers Affairs Office of the Department of Trade and Industry informed the State Attorney that the Minister of Trade and Industry (the Minister) would appeal against the Judge's finding and would also object against vR's application for leave of appeal.
The attorney of Omega, vR and Hawkins again addressed the Committee.
An officials held discussions with vR and at the Omega offices.
Extensive discussions were held between vR, vZ end an official of the Committee at the offices of Omega in Silverton.
Protracted correspondence between the Committee and the attorney of Omega also ensued. This correspondence mostly revolved around legal issues. There was also correspondence between the Committee and vR.
| (1) | A section 4(1)(c) investigation enables the Committee to make such preliminary investigation as it may consider necessary into, or center with any interested party in connection with, any harmful business practice which allegedly exists or may come Into existence. Notice of section 4(1)(c) investigations is not published in the Government Gazette as opposed to section 8(1)(4) investigations. The purpose of section 4(1)(c) investigations is to enable the Committee to make a more informed decision as to whether a section 8(1)(a) investigation is called for. The Minister of Trade and industry is not empowered to make any decisions on the strength of a section 4(1)(c) investigation. He may do so in terms of a section 8 investigation. |
| (2) | See G F Janse van Rensburg and Omega Trust Power Marketing CC v The Minister of Trade and industry and Louise Arlene Tager, case number 22658/98, 26 October 1998, High Court of South Africa, Transvaal Provincial Division. |