Comparison View

Formal Consolidation |  2020 RevEd
Declaration or injunction
9.—(1)  Where a supplier has engaged, is engaging or is likely to engage in an unfair practice, the District Court or General Division of the High Court may, on the application of the Commission —
(a)make a declaration that the practice engaged in or about to be engaged in by the supplier is an unfair practice;
(b)grant an injunction restraining the supplier from engaging in the unfair practice; and
(c)if the District Court or General Division of the High Court grants relief under paragraph (a) or (b), make in addition one or more of the accompanying orders mentioned in subsection (4).
[25/2016; 10/2018; 40/2019]
(2)  Where an application is made to the District Court or General Division of the High Court for the grant of a declaration or an injunction under subsection (1), the power of the District Court or General Division of the High Court to grant the declaration or injunction may be exercised —
(a)if the District Court or General Division of the High Court is satisfied that the supplier has engaged in the unfair practice, whether or not it appears to the District Court or General Division of the High Court that the supplier intends to engage again, or to continue to engage, in the unfair practice; or
(b)if the District Court or General Division of the High Court is satisfied that, in the event that a declaration or an injunction is not granted, it is likely that the supplier will engage in the unfair practice, whether or not the supplier has previously engaged in the unfair practice and whether or not there is any likelihood of irreparable harm to any consumer or class of consumers if the supplier engages in the unfair practice.
[25/2016; 40/2019]
(3)  Where an application is made to the District Court or General Division of the High Court for an injunction under subsection (1), the District Court or General Division of the High Court may (pending determination of the application) grant an interim injunction restraining the supplier from engaging in the unfair practice, if the District Court or General Division of the High Court considers it desirable to do so —
(a)whether or not it appears to the District Court or General Division of the High Court that the supplier intends to engage again, or to continue to engage, in the unfair practice; or
(b)whether or not the supplier has previously engaged in the unfair practice and whether or not there is any likelihood of irreparable harm to any consumer or class of consumers if the supplier engages in the unfair practice.
[25/2016; 40/2019]
(4)  The accompanying orders for the purposes of subsection (1)(c) are as follows:
(a)an order that the supplier must periodically publish, at the supplier’s expense, for a specified period that the supplier continues to be a supplier, the details of the declaration or injunction in the form and manner and at the intervals as will secure prompt and adequate publicity for the declaration or injunction against the supplier;
(b)an order that the supplier must, before any consumer enters into a contract in relation to a consumer transaction with the supplier during a specified period —
(i)notify the consumer in writing about the declaration or injunction against the supplier; and
(ii)obtain the consumer’s written acknowledgment of the notice in sub‑paragraph (i);
(c)an order that the supplier must include in every invoice or receipt issued by the supplier to a consumer during a specified period, a statement that the District Court or General Division of the High Court has granted a declaration or injunction against the supplier;
(d)an order that the supplier must, within 14 days after any of the following events occurring in a specified period, notify the Commission in writing:
(i)a change in the premises or number of premises at which the supplier carries on business as a supplier;
(ii)a change in the Internet address or number of Internet addresses through which consumer transactions with the supplier may be entered into;
(iii)the supplier converts from a firm or private company to a limited liability partnership under section 26 or 27 of the Limited Liability Partnerships Act 2005, respectively;
(iv)the supplier undergoes any arrangement, reconstruction or amalgamation under Part 7 of the Companies Act 1967;
(v)an order is made under section 71 of the Insolvency, Restructuring and Dissolution Act 2018 approving a compromise or an arrangement between the supplier and the supplier’s creditors;
(vi)the supplier is subject to receivership under Part 6 of the Insolvency, Restructuring and Dissolution Act 2018;
(vii)the supplier is subject to judicial management under Part 7 of the Insolvency, Restructuring and Dissolution Act 2018;
(viii)the supplier is subject to winding up under Part 8 of the Insolvency, Restructuring and Dissolution Act 2018;
(ix)any other event prescribed under this Act;
(e)where the supplier is an individual, an order that the individual must inform the Commission in writing if a notifiable event occurs in a specified period;
(f)where the supplier is a partnership that has one or more partners who are individuals, an order that any one or all of those individuals must inform the Commission in writing if a notifiable event occurs in a specified period;
(g)an order that the supplier must reimburse the Commission for the cost of publishing or causing to be published all or any of the following:
(i)a notice that the Commission has commenced an action under subsection (1) against the supplier;
(ii)a notice that an interim injunction has been granted against the supplier under subsection (3), and details of the interim injunction;
(iii)a notice that an injunction, declaration, or both, have been granted against the supplier under subsection (1), and details of the injunction and declaration.
[25/2016; 10/2018; 40/2018; 40/2019]
(5)  For the purposes of subsection (4)(a) and (g)(ii) and (iii), a reference to the details of a declaration, an injunction or an interim injunction granted against a supplier includes the following:
(a)particulars of the declaration, injunction or interim injunction, as the case may be;
(b)the name of the supplier;
(c)whether the supplier is subject to any other subsisting declaration or injunction, or both, pursuant to any other action commenced under this section;
(d)the address at which the supplier is carrying on the supplier’s business;
(e)where the supplier carries on business through the Internet, the Internet address at which the supplier may enter into a consumer transaction with a consumer.
[25/2016]
(6)  Where the District Court or General Division of the High Court makes 2 or more accompanying orders mentioned in subsection (4)(a), (b), (c) and (d) against a supplier, the specified period in respect of each of the orders must be the same.
[25/2016; 40/2019]
(7)  Subject to subsections (8), (9), (10) and (11), a reference to a specified period in subsection (4) is a reference to such period specified by the District Court or General Division of the High Court, not exceeding 5 years or any other period that the Minister may prescribe in place of the 5 years.
[25/2016; 40/2019]
(8)  If a supplier fails to comply with an order mentioned in subsection (4)(a), (b), (c) and (d) accompanying a declaration or injunction made under subsection (1), the District Court or General Division of the High Court which made the declaration or injunction may, on the application of the Commission, extend the specified period in the order to any time not exceeding the maximum period specified in subsection (10).
[25/2016; 10/2018; 40/2019]
(9)  If an individual fails to comply with an order mentioned in subsection (4)(e) or (f) accompanying a declaration or an injunction made under subsection (1), the District Court or General Division of the High Court which made the declaration or injunction may, on the application of the Commission, extend the specified period in the order to any time not exceeding the maximum period specified in subsection (10).
[25/2016; 10/2018; 40/2019]
(10)  In subsections (8) and (9), the aggregate of the specified period and all extensions of time under each of those provisions must not exceed 10 years after the date on which the accompanying order under subsection (4) was made, or any other period that the Minister may prescribe in place of the 10 years.
[25/2016]
(11)  For the purposes of subsections (7) and (10), any period prescribed by the Minister applies to any application made by the Commission under subsection (1), (8) or (9) (as the case may be) on or after the date of the prescription.
[25/2016; 10/2018]
(12)  Without affecting subsection (8), if a supplier enters into a consumer transaction with a consumer in breach of an accompanying order mentioned in subsection (4)(b), then the consumer may, within 6 months after the date on which the contract was entered into, cancel the contract in accordance with regulations made under section 43(2)(m).
[25/2016]
(13)  Subsections (8), (9) and (12) apply despite any proceedings which may be commenced against the supplier or individual (as the case may be) for contempt of court.
[25/2016]
(14)  If a practice of the supplier has been declared or permanently enjoined by the District Court or General Division of the High Court as being an unfair practice under this section, the order is, in any other civil proceedings involving the supplier except an appeal from the order, conclusive proof that the practice in question is an unfair practice.
[25/2016; 40/2019]
(15)  In this section and section 10, “notifiable event” means an event specified in the Fifth Schedule.
[25/2016]
Informal Consolidation | Amended Act 31 of 2022
Declaration or injunction
9.—(1)  Where a supplier has engaged, is engaging or is likely to engage in an unfair practice, the District Court or General Division of the High Court may, on the application of the Commission —
(a)make a declaration that the practice engaged in or about to be engaged in by the supplier is an unfair practice;
(b)grant an injunction restraining the supplier from engaging in the unfair practice; and
(c)if the District Court or General Division of the High Court grants relief under paragraph (a) or (b), make in addition one or more of the accompanying orders mentioned in subsection (4).
[25/2016; 10/2018; 40/2019]
(2)  Where an application is made to the District Court or General Division of the High Court for the grant of a declaration or an injunction under subsection (1), the power of the District Court or General Division of the High Court to grant the declaration or injunction may be exercised —
(a)if the District Court or General Division of the High Court is satisfied that the supplier has engaged in the unfair practice, whether or not it appears to the District Court or General Division of the High Court that the supplier intends to engage again, or to continue to engage, in the unfair practice; or
(b)if the District Court or General Division of the High Court is satisfied that, in the event that a declaration or an injunction is not granted, it is likely that the supplier will engage in the unfair practice, whether or not the supplier has previously engaged in the unfair practice and whether or not there is any likelihood of irreparable harm to any consumer or class of consumers if the supplier engages in the unfair practice.
[25/2016; 40/2019]
(3)  Where an application is made to the District Court or General Division of the High Court for an injunction under subsection (1), the District Court or General Division of the High Court may (pending determination of the application) grant an interim injunction restraining the supplier from engaging in the unfair practice, if the District Court or General Division of the High Court considers it desirable to do so —
(a)whether or not it appears to the District Court or General Division of the High Court that the supplier intends to engage again, or to continue to engage, in the unfair practice; or
(b)whether or not the supplier has previously engaged in the unfair practice and whether or not there is any likelihood of irreparable harm to any consumer or class of consumers if the supplier engages in the unfair practice.
[25/2016; 40/2019]
(4)  The accompanying orders for the purposes of subsection (1)(c) are as follows:
(a)an order that the supplier must periodically publish, at the supplier’s expense, for a specified period that the supplier continues to be a supplier, the details of the declaration or injunction in the form and manner and at the intervals as will secure prompt and adequate publicity for the declaration or injunction against the supplier;
(b)an order that the supplier must, before any consumer enters into a contract in relation to a consumer transaction with the supplier during a specified period —
(i)notify the consumer in writing about the declaration or injunction against the supplier; and
(ii)obtain the consumer’s written acknowledgment of the notice in sub‑paragraph (i);
(c)an order that the supplier must include in every invoice or receipt issued by the supplier to a consumer during a specified period, a statement that the District Court or General Division of the High Court has granted a declaration or injunction against the supplier;
(d)an order that the supplier must, within 14 days after any of the following events occurring in a specified period, notify the Commission in writing:
(i)a change in the premises or number of premises at which the supplier carries on business as a supplier;
(ii)a change in the Internet address or number of Internet addresses through which consumer transactions with the supplier may be entered into;
(iii)the supplier converts from a firm or private company to a limited liability partnership under section 26 or 27 of the Limited Liability Partnerships Act 2005, respectively;
(iv)the supplier undergoes any arrangement, reconstruction or amalgamation under Part 7 of the Companies Act 1967;
(v)an order is made under section 71 of the Insolvency, Restructuring and Dissolution Act 2018 approving a compromise or an arrangement between the supplier and the supplier’s creditors;
(vi)the supplier is subject to receivership under Part 6 of the Insolvency, Restructuring and Dissolution Act 2018;
(vii)the supplier is subject to judicial management under Parts 7 and 9 of the Insolvency, Restructuring and Dissolution Act 2018;
[Act 31 of 2022 wef 01/11/2022]
(viii)the supplier is subject to winding up under Parts 8 and 9 of the Insolvency, Restructuring and Dissolution Act 2018;
[Act 31 of 2022 wef 01/11/2022]
(ix)any other event prescribed under this Act;
(e)where the supplier is an individual, an order that the individual must inform the Commission in writing if a notifiable event occurs in a specified period;
(f)where the supplier is a partnership that has one or more partners who are individuals, an order that any one or all of those individuals must inform the Commission in writing if a notifiable event occurs in a specified period;
(g)an order that the supplier must reimburse the Commission for the cost of publishing or causing to be published all or any of the following:
(i)a notice that the Commission has commenced an action under subsection (1) against the supplier;
(ii)a notice that an interim injunction has been granted against the supplier under subsection (3), and details of the interim injunction;
(iii)a notice that an injunction, declaration, or both, have been granted against the supplier under subsection (1), and details of the injunction and declaration.
[25/2016; 10/2018; 40/2018; 40/2019]
(5)  For the purposes of subsection (4)(a) and (g)(ii) and (iii), a reference to the details of a declaration, an injunction or an interim injunction granted against a supplier includes the following:
(a)particulars of the declaration, injunction or interim injunction, as the case may be;
(b)the name of the supplier;
(c)whether the supplier is subject to any other subsisting declaration or injunction, or both, pursuant to any other action commenced under this section;
(d)the address at which the supplier is carrying on the supplier’s business;
(e)where the supplier carries on business through the Internet, the Internet address at which the supplier may enter into a consumer transaction with a consumer.
[25/2016]
(6)  Where the District Court or General Division of the High Court makes 2 or more accompanying orders mentioned in subsection (4)(a), (b), (c) and (d) against a supplier, the specified period in respect of each of the orders must be the same.
[25/2016; 40/2019]
(7)  Subject to subsections (8), (9), (10) and (11), a reference to a specified period in subsection (4) is a reference to such period specified by the District Court or General Division of the High Court, not exceeding 5 years or any other period that the Minister may prescribe in place of the 5 years.
[25/2016; 40/2019]
(8)  If a supplier fails to comply with an order mentioned in subsection (4)(a), (b), (c) and (d) accompanying a declaration or injunction made under subsection (1), the District Court or General Division of the High Court which made the declaration or injunction may, on the application of the Commission, extend the specified period in the order to any time not exceeding the maximum period specified in subsection (10).
[25/2016; 10/2018; 40/2019]
(9)  If an individual fails to comply with an order mentioned in subsection (4)(e) or (f) accompanying a declaration or an injunction made under subsection (1), the District Court or General Division of the High Court which made the declaration or injunction may, on the application of the Commission, extend the specified period in the order to any time not exceeding the maximum period specified in subsection (10).
[25/2016; 10/2018; 40/2019]
(10)  In subsections (8) and (9), the aggregate of the specified period and all extensions of time under each of those provisions must not exceed 10 years after the date on which the accompanying order under subsection (4) was made, or any other period that the Minister may prescribe in place of the 10 years.
[25/2016]
(11)  For the purposes of subsections (7) and (10), any period prescribed by the Minister applies to any application made by the Commission under subsection (1), (8) or (9) (as the case may be) on or after the date of the prescription.
[25/2016; 10/2018]
(12)  Without affecting subsection (8), if a supplier enters into a consumer transaction with a consumer in breach of an accompanying order mentioned in subsection (4)(b), then the consumer may, within 6 months after the date on which the contract was entered into, cancel the contract in accordance with regulations made under section 43(2)(m).
[25/2016]
(13)  Subsections (8), (9) and (12) apply despite any proceedings which may be commenced against the supplier or individual (as the case may be) for contempt of court.
[25/2016]
(14)  If a practice of the supplier has been declared or permanently enjoined by the District Court or General Division of the High Court as being an unfair practice under this section, the order is, in any other civil proceedings involving the supplier except an appeal from the order, conclusive proof that the practice in question is an unfair practice.
[25/2016; 40/2019]
(15)  In this section and section 10, “notifiable event” means an event specified in the Fifth Schedule.
[25/2016]