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Exceptions from duty to make or confirm enforcement orders. |
17. The Commission shall not make a final order or make or confirm a provisional order if it is satisfied that- |
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(a) the duties imposed on it by sections 3 and 5 preclude it from doing so, |
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(b) the licence holder has agreed to take and is taking all the steps that the Commission considers appropriate to secure or facilitate compliance with the condition concerned, or |
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(c) the contraventions or apprehended contraventions are trivial. |
Enforcement orders: main procedural requirements. |
18. - (1) Before making a final order or confirming a provisional order, the Commission shall- |
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(a) give notice of the proposed order or confirmation, and |
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(b) consider any representations made in accordance with the notice and not withdrawn. |
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(2) The notice shall state- |
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(a) that the Commission proposes to make or confirm the order, |
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(b) the effect of the order, |
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(c) the condition for the purpose of securing compliance with which the order is to be made or confirmed, |
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(d) the acts or omissions which the Commission considers constitute or would constitute contraventions of that condition, |
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(e) any other facts which the Commission considers justify the making or confirmation of the order, and |
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(f) the period (not less than 21 days starting with the date of publication of the notice) within which representations may be made in relation to the proposed order or confirmation. |
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(3) A notice under subsection (1) shall be given by- |
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(a) serving on the licence holder and the Council a copy of the notice and a copy of the order proposed (or proposed to be confirmed), and |
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(b) publishing the notice in such manner as the Commission considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them. |
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(4) As soon as practicable after making a final order, or making or confirming a provisional order, the Commission shall- |
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(a) serve a copy of the order on the licence holder and the Council, and |
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(b) publish the order in such manner as the Commission considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it. |
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(5) This section has effect subject to section 19. |
Enforcement orders: further procedural requirements. |
19. - (1) The Commission shall not make a final order with modifications, or confirm a provisional order with modifications, unless- |
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(a) the licence holder consents to the modifications, or |
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(b) the Commission complies with the requirements of subsection (2). |
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(2) The requirements are that the Commission shall- |
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(a) give notice of the proposed modifications, and |
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(b) consider any representations made in accordance with the notice and not withdrawn. |
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(3) The notice shall state- |
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(a) the proposed modifications, |
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(b) the reasons for them, and |
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(c) the period (not less than 7 days starting with the date of publication of the notice) within which representations may be made in relation to the proposed modifications. |
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(4) Before revoking a final order or a provisional order which has been confirmed, the Commission shall- |
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(a) give notice of the proposed revocation, and |
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(b) consider any representations made in accordance with the notice and not withdrawn. |
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(5) The notice shall state- |
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(a) that the Commission proposes to revoke the order, |
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(b) the effect of the proposed revocation, and |
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(c) the period (not less than 21 days starting with the date of publication of the notice) within which representations may be made in relation to the proposed revocation. |
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(6) As soon as practicable after revoking a final order or a provisional order which has been confirmed, the Commission shall give notice of the revocation. |
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(7) If, after giving notice under section 18(1) or subsection (2) or (4) of this section, the Commission decides not to make a final order or confirm a provisional order or (as the case may be) revoke the order, it shall give notice of that decision. |
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(8) A notice under this section shall be given by- |
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(a) serving a copy of the notice on the licence holder and the Council, and |
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(b) publishing the notice in such manner as the Commission considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them. |
Effect of enforcement orders. |
20. - (1) The licence holder to whom a final or provisional order relates shall have a duty to comply with it. |
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(2) The duty shall be owed to any person who may be affected by a contravention of the order. |
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(3) Any breach of the duty which causes such a person to sustain loss or damage shall be actionable by him. |
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(4) In any proceedings brought against a licence holder under subsection (3) it shall be a defence for the licence holder to show that he took all reasonable steps and exercised all due diligence to avoid contravening the order. |
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(5) Compliance with a final or provisional order shall also be enforceable by civil proceedings brought by the Commission for an injunction or for interdict or for any other appropriate relief or remedy. |
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(6) Subsection (5) shall not prejudice any right that a person may have by virtue of subsection (3) to bring civil proceedings for contravention or apprehended contravention of a final or provisional order. |
| Financial penalties |
Financial penalties. |
21. - (1) If the Commission is satisfied that a licence holder- |
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(a) has contravened any condition of his licence, or |
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(b) is contravening any such condition, |
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the Commission may impose on the licence holder a penalty of such amount as is reasonable. |
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(2) The Commission may impose a penalty under this section in respect of a contravention of a licence condition irrespective of whether it has made or may make a final or provisional order in respect of that contravention. |
Statement of policy in relation to penalties. |
22. - (1) The Commission shall prepare and publish a statement of policy in relation to the imposition of penalties and the determination of their amount. |
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(2) In deciding whether to impose a penalty, and in determining the amount of any penalty, the Commission shall have regard to the statement of policy which was most recently published at the time when the contravention concerned occurred. |
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(3) The Commission may revise its statement of policy and, where it does so, it shall publish the revised statement. |
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(4) Publication under this section shall be in such manner as the Commission considers appropriate for the purpose of bringing the matters contained in the statement of policy to the attention of persons likely to be affected by them. |
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(5) The Commission shall consult the Council and such other persons as it considers appropriate when preparing or revising its statement of policy. |