Estate Agents Amendment Act [No. 90 of 1998]
REPUBLIC OF SOUTH AFRI
GOVERNMENT GAZETTE
STAATSKOERANT
VAN DIE REPUBLIEK VAN SUID-AFRIKA
Registered at the Post O@ce us a Newspaper As ‘n Nuusblad by die Poskantoor Geregistreer
VOL 400 CAPE TOWN. 30 OCTOBER 1998
KAAPSTAD, 30 OKTOBER 1998 No. 19413
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OFFICE OF THE PRESIDENT
No. 1393. 30 Oc(ober 1998
It is hereby notitied that the President has assented to the following Act which is hereby publ ished for gene ra l information:-
No. 90 of 1998: Estate Agents Amendment Act, 1998
KANTOOR VAN DIE PRESIDENT
No. 1393. 30 Oktober 1998
Hierby word bekend gemaak dat die President sy goed- keuring geheg het aan die onderstaande Wet wat hierby ter a]gemene inligting gepubliseer word:—
No. 90 van 1998: Wysigingswet op Eiendomsagente. 1998.
~ No. 1941.3 GOVERNNIENT GAZETTE. 30 C)CTOBER 1998
Act No. 90, 1998 ESTATE AGENTS AMENDMENT ACT. 1998
GENERAL EXPLANATORY NOTE:
[ 1 Words in bold type in square brackets indicate omissions from existing enactments.
Words underlined with a solid line indicate insertions in existing enactments.
(Eng[i.vh text signed by the President. ) (Assented to 20 October 1998.)
ACT To amend the Estate Agents Act, 1976, so as to substitute certain words; to amend or to insert certain definitions; to amend the objects of the Estate Agency Affairs Board; to further regulate appeals to the Board; to provide for grants and payments from the fidelity fund and the arrangement of group insurance schemes by the Board; to provide for the imposition of a penalty for the late application for the issue of a fidelity fund certificate or a registration certificate; to provide that the fidelity fund shall be obliged to pay compensation to a person who suffered a loss by reason of theft by an estate agent of trust money; to make further provision for the disqualifications relating to the issuing of fidelity fund certificates, and for the withdrawal of a fidelit y fund certificate and a registration certificate; to provide for the circumstances under which a fidelity fund certificate and a registration certificate shall lapse; to further regulate the grounds upon which an estate agent shall be guilty of conduct deserving of sanction; to provide anew for the penalties which the Board or a committee of inquiry may impose; to provide for the suspension of a fidelity fund certificate if a fine imposed by the Board is not paid within one month; to authorise the Board and a committee of inquiry to order that any portion of a fine imposed by it be applied to compensate any person who suffered a loss as a result of the conduct of the estate agent concerned; to authorise the Board to make a contribution from the fidelity fund towards the costs incurred by an estate agent who has been found not guilty on a charge of conduct deserving of sanction; to make further provision for the keeping of a trust account by an estate agent; to provide for circumstances under which an estate agent shall not be entitled to remuneration; and to prohibit the drafting or completion of certain documents by estate agents who have not complied with the prescribed standard of training; and to provide for matters connected therewith.
BE IT ENACTED by the Parliament of the Republic of South Africa, asfollows:—
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Act No. 90, 1998 ESTATE AGENTS AMENDMENT ACT. 1998
Amendment of section 1 of Act 112 of 1976, as amended by section 1 of Act 60 of 1978, section 1 of Act 57 of 1980, section 1 of Act 53 of 1982, section 1 of Act 51 of 1984, section 1 of Act 10 of 1985 and section 1 of Act 49 of 1996
1. Section 1 of the Estate Agents Act. 1976 (hereinafter referred to as the principal Act). is hereby amended— 5
(a) by the substitution for the definition of “ board” of’ the following definition: ‘( ‘board’ means the Estate [Agents] Agency Affairs Board established under section 2, and includes, for the purposes of [subsections (2) and (3) of section 30, and] section 32(7 )(a)(ii) [insofar as it relates to the said subsections]. any [disciplinary] committee [of the board acting 10 pursuant to and in accordance with the provisions of section 8B] Q @lU!I)!;”;
(b) by the insertion after the definition of “close corporation”. of the following definition:
“ ‘committee of inquiry’ means a committee of inquiry referred to in 15 section 8B(1); ”;
(c) by the insertion, after the definition of “court”, of the following definitions: “ ‘employ ‘ includes using the services of an independent contractor; ‘employee’ includes an independent contractor;”;
(d) by the substitution for subparagraphs (i) and (ii) of paragraph (a) of the 20 definition of “estate agent” of the following subparagraphs, respectively: “(i) sells or purchases or publicly exhibits for sale immovable property [or
any interest in immovable property] or any business undertaking or negotiates in connection therewith or canvasses or undertakes or offers to canvas a seller or purchaser therefor; or 25
(ii) lets or hires or publicly exhibits for hire immovable property [or any interest in immovable property] or any business undertaking or negotiates in connection therewith or canvasses or undertakes or offers to canvass a lessee or lessor therefor; or”;
(e) by the substitution in paragraph (c)of the definition of “estate agent” for the 30 words preceding subparagraph (i) of the following words: “(c) for purposes of sections 7,8,9, 12, 15, 16, 18, 19,21,26,27,30 [and],
33 and 34B, includes—”; (j,) by the substitution for paragraph (e) of the definition of “estate agent” of the
following paragraph: 35 “(e) for purposes of section 30(2), (3), (4), [and] (5), (6), (7) and (8,) and of
regulations made under section 33( 1)(h), includes any person who was an estate agent at the time when he or she was guilty of any act or omission which allegedly constitutes [improper] conduct deserving of sanction referred to in section 30:”; 40
(g) by the substitution for the definition of “fidelity fund certificate” of the following definition:
“ ‘fidelity fund certificate’ means a fidelity fund certificate referred to in section 16, and includes for the purposes of sections [26(a)] 26, 27, 28 and 33( 1)(e) and ~), a registration certificate referred to in sec~on 16;”; 45
(h) by the addition to the definition of “immovable property” of the following paragraph:
“(i) any housing interest as defined in section 1 of the Housing Development Schemes for Retired Persons Act, 1988 (Act No. 65 of 1988), and any proposed housing interest;”; 50
(i) by the substitution for the definition of “Minister” of the following definition: “ ‘Minister’ means the Minister of [Commerce and Consumer Affairs] Trade and Industry;”; and
(j) by the addition of the following definition: “ ‘trust money’ means— 55 (a) money or other property entrusted to an estate agent in his or her
capacity as an estate agent;
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Act No. 90, 1998 ESTATE .AGENTS AMENDMENT ACT. 1998
(b) money collected or received by an estate agent and payable in respect of or on account of any act referred to in subparagraph (i j. (ii), (iii) or (iv) of paragraph (a) of the definition of ‘e\tate agent’:
(CJ any other moneys, including insurance premiums, collected or received by an estate agent and payable in respect of any immovable property, business undertaking or contract for the building or erection of anv improvements on immovable property,”.
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Substitution of section 2 of Act 112 of 1976
2. The following section is hereby substituted for section 2 of the principal Act:
“Establishment of Estate Agency Affairs Board 10
2. There is hereby established u juristic person to be known as the Estate [Agents] Agency Atiairs Board.”.
Substitution of section 7 of Act 112 of 1976
3. The following section is hereby substituted for section 7 of the principal Act:
“Objects of board 15
7. [The object] Having due regard to the public interest, the objects of the board shall be to- (a) maintain and promote the [integrity] standard of conduct of estate
agents; and &) regulate the activities of estate agents.”. 20
Amendment of section 8B of Act 112 of 1976, as inserted by section 5 of Act 51 of 1984
4. Section 8B of the principal Act is hereby amended— (a) by the substitution for subsection (2) of the following subsection:
“(2) A [disciplinary] committee of inquiry may exercise or perform 25 any power or function which is granted or entrusted to [the board by subsections (2) and (3) of section 30] it in terms of this Act.”;
(b) by the substitution for subsection 5 of the following subsection: “(5) If a vacancy occurs on a [disciplinary] committee of inquiry after
the committee has commenced with an investigation, the investigation 30 may be proceeded with before at least two members of the committee, but if only two serving members remain, they may take any decision referred to in section 30(3), (7) or (8) only by unanimous vote.’-;
(c) by the deletion of subsection (6); and (d) by the substitution for the words “disciplinary committee” and “disciplinary 35
committees”, wherever they occur, of the words “committee of inquiry” and “committees of inquiry”, respectively,
Insertion of section 8C in Act 112 of 1976
5. The following section is hereby inserted in the principal Act after section 8B:
“Appeal against decisions of committees of inquiry 40
8C. (1) Any person who feels aggrieved by any decision taken by a committee of inquiry in the exercise of its powers and the performance of its functions under section 8B(2), may, subject to subsection (3), within 30 days after tbe committee of inquiry—
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Act No. 90, 1998 ESTATE AGENTS AMENDMENT ACT. 1998
(a) has informed that person in writing of the decision and upon payment of the prescribed fee request the committee of inquiry in writing to furnish him or her in writing with its reasons for the decision:
(h] has in accordance with paragraph (u) furnished that person with its reasons for the decision and after notice to the committee of inquiry, appeal to the board against the decision in the prescribed manner.
(2) The board shall hear the appeal against the decision of the committee of inquiry in the prescribed manner and may after considering the appeal— (u) confirm, amend or reverse the decision; (b) remit the matter for further hearing, with such instructions as regards
the taking of further evidence or otherwise as the board may deem necessary;
(c) confirm or suspend any penalty imposed; (d) set aside any penalty imposed and impose any other penalty
contemplated in section 30(3); (e) make an order contemplated in section 30(7)(u).
(3) (a) If a committee of inquiry has found an estate agent not guilty on a charge of conduct deserving of sanction, any person who lodges an appeal against the decision to the board shall pay to the board a deposit, in an amount determined by the board, to cover the costs of the board and the estate agent concerned in respect of the appeal,
(b) The deposit contemplated in paragraph (a) shall be refunded in full if the appeal is successful or partly successful.
(4) A court may, on application by the board, order that a decision of, or penalty imposed by, a committee of inquiry not be stayed or suspended pending an appeal to the board, if the court considers such an order to be in the public interest.”.
Insertion of sections 12A, 12B and 12C in Act 112 of 1976
6. The following sections are hereby inserted in the principal Act after section 12:
“Determination of liabilities of fund and investment of moneys in fund 30
12A. (1) The Board shall after the end of each tinancial year of the fund determine to what extent, if at all, the total income of the fund during that financial year exceeded the expenditure incurred by or accrued to the fund during that financial year and shall, if the fund’s income exceeded its liabilities, determine how much of the excess may be utilised during the 35 next financial year for the purposes of the grants and other payments contemplated in section 12B.
(2) Any moneys in the fund not immediately required for the purposes of the fund, shall be invested in the prescribed manner.
Grants and other payments from fund 40
12B. (1) The board may, from the amount determined by it in terms of section 12A and subject to such terms and conditions as it may deem fit— (a) make grants with regard to-
(i) research in fields of activity relevant to the business of estate agents in general; 45
(ii) the maintenance and promotion of the standard of conduct of estate agents in general;
(iii) the maintenance and promotion of the training standards of estate agents in general;
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Act No. 90.1998 ESTATE AGENTS AMENDMENT ACT. 1998
(b) make grants to any association or society of estate agents for the purposes of enabling that association or society to further the practice of estate agency or to maintain and promote the interests of estate agents in general;
(c) pay an honorarium or compensation to any person or institution for services with the object of enhancing the standard of conduct of estate agents in general, rendered at the request of the board; and
(d) utilise such amount as it may determine for the purposes of— (i) advertising and promoting the services and facilities offered by
estate agents in general; or (ii) promoting public awareness in respect of matters relating to the
acquisition and disposal of immovable property.
(2) The board may at any time revoke any grant contemplated in subsection (1)(a) or (b).
Group insurance schemes
12C. (1) The board may in the public interest arrange any group insurance scheme with any insurer registered or deemed to be registered under the Insurance Act, 1943 (Act No. 27 of 1943), for the provision of indemnity insurance to cover estate agents’ liability to members of the public on the grounds of malpractice, up to an amount determined by the board.
(2) Any premium payable in respect of the insurance contemplated in subsection (1) shall be paid from the fund.”.
Amendment of section 16 of Act 112 of 1976, as amended by section 2 of Act 53 of 1982 and section 3 of Act 40 of 1986
7. Section 16 of the principal Act is hereby amended— (a) by the substitution for subsection (3) of the following subsection:
“(3) [Ifl Subject to sections 28(1), 28(5) and 30(6), if the board upon receipt of any application referred to in subsection (1) or (2) and the levies and contribution referred to in those subsections, is satisfied that the applicant concerned is not disqualified in terms of section 27 from being issued with a fidelity fund certificate, the board shall in the prescribed form issue to the applicant concerned a fidelity fund certificate or a registration certificate, as the case may be, which shall be valid until 31 December of the year to which such application relates.”; and
(b) by the addition of the following subsection: “(5) An estate agent who applies to the board for a fidelity fund
certificate or a registration certificate, as the case may be, after the prescribed period referred to in subsection (1) or (2), or whose application is not accompanied by the levy referred to in section 9(1 )(a) or the contribution referred to in section 15, as the case may be, shall pay to the board a prescribed penalty in addition to the levy or contribution and no fidelity fund certificate or registration certificate shall be issued to the estate agent until the penalty has been paid.”.
Repeal of section 17 of Act 112 of 1976
8. Section 17 of the principal Act is hereby repealed.
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Act No. 90, 1998 ESTATE AGENTS AMENDMENT ACT. 1998
Amendment of section 1!3 of Act 112 of 1976, as amended by section 2 of Act 60 of 1978, section 5 of Act 57 of 1980 and section 7 of Act 51 of 1984
9. Section 18 of the principal Act is hereby zmended by the substitution for paragraphs (u) and (b) of subsection ( 1 ) of the following paragraphs. respectively:
“(a) theft of trust money, committed after the commencement of this Act. by an estate agent;
(b) the failure of an estate agent to comply with section 32(1) or 32(2)(