Just an example of some of the steps that should be taken and in a cease and desist order...it really is not easy to be heard by a judge if you do not come as an innocent party.
"Steps to be taken by the Cease and Desist Commissioner when an application is made for a cease and desist order
Application is made to the Commissioner by the Commission accompanied by a certificate from the Commission that:
a. an investigation has been conducted into the alleged contravention and a report has been submitted to the Commission recommending that a cease and desist order be sought; and
b. the Commission agrees with the recommendation in the report and directs an officer of the Commission to make an application for a cease and desist order.
The Commission serves copies of the application and the certificate on the person against whom the cease and desist order is sought and files an affidavit of service with the Commissioner.
The Commission serves the person against whom the cease and desist order is sought with notice in writing of:
a. the nature of the alleged contravention;
b. the terms of the proposed order; and
c. the reasons for the order;
and files an affidavit of service with the Commissioner.
While the Commission is attending to service in terms of paragraphs 2 and 3, the Commissioner should consider the following matters to be able to discuss them with the parties at the preliminary conference:
a. what does the person against whom the cease and desist order is sought want to do in respect of:
i. access to the relevant information held by the Commission;
ii. making a written submission;
iii. consenting to the terms of the proposed order or having the matter determined by a Commissioner following a hearing?
b. are directions necessary for the completion of all steps before the hearing of the application?
c. what is the time within which each step should be completed?
d. what steps are to be taken if any party fails to comply with any directions as to the steps to be taken or the time within which such steps are to be taken?
A preliminary conference (normally by telephone) should be convened by the Commissioner as soon as possible. The particular matters to be addressed will include:
a. the matters in paragraph 4;
b. whether the Commission and the person against whom the cease and desist order is sought are to be represented by counsel;
c. when the hearing is likely to take place; how long the hearing is likely to take; and where the hearing will be held;
d. what way the evidence is to be given at the hearing; directions will need to be given that the evidence, or the evidence of any particular witness or witnesses, shall be given orally or by affidavit or by pre-recorded statement or report duly sworn or affirmed by the witness before or at the hearing;
e. whether experts will be giving evidence at the hearing; if so, whether the Code of Conduct for experts in the High Court Rules apply;
f. within what time the evidence should be tendered if the evidence is to be in written form and whether the exchange of evidence be contemporaneous or sequential; and
g. any other matters which the Commissioner or the parties think fit and, in particular, any matters which will assist in achieving as little formality and technicality as the requirements of the Commerce Act and a proper consideration of the matter permit.
Steps to be taken at the hearing of the application
Are there any preliminary issues which require consideration and rulings? For example, should the hearing be open or closed to the public? Are there any confidentiality or other concerns about any aspects of the evidence to be given at the hearing?
The Commission should open its case and call its witnesses.
An opportunity must be given to the party against whom the order is sought to cross-examine any Commission witnesses.
An opportunity must be given to the Commission to re-examine the witnesses.
The Commissioner presiding may ask questions at any time.
It will be necessary for a transcript of the evidence to be taken. There are various transcription services available. The costs of such transcription should be borne by the Commission in the first instance.
After the Commission has presented its case, the question may arise as to whether the party against whom the order is sought may wish to make a submission that there is no case to answer.
The party against whom the order is sought should then be given the opportunity to open its case and to give and call evidence.
An opportunity must be given to the Commission to cross-examine the party against whom the order is sought (if the party gives evidence) and the witnesses called by that party to give evidence on its behalf.
An opportunity must be given to the party against whom the order is sought to re-examine the witnesses.
An opportunity should then be given to the person against whom the order is sought."
Hope this helps...
T.
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