Estate Agents Amendment Act
STAATSKOERANT VAN DIE REPUBLIEK VAN SUID-AFRIKA
REPUBLIC OF SOUTH AFRICA
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KAAPSTAD, 23 APRIL 1986
CAPE TOWN, 23 APRIL 1986 No. 10202
KANTOORVANDIESTAATSPRESIDENT STATE PRESIDENT'S OFFICE
No. 728. 23 April1986 No. 728. 23 April1986
Hierby word bekend gemaak dat die Staatspresident sy
f edkeuring geheg bet aan die onderstaande Wet wat erby ter algemene inligting gepubliseer word:-
o. 40 van 1986: Wysigingswet op Eiendomsagente, 1986.
It is hereby notified that the State President has assented to the following Act which is hereby published for general information:-
No. 40 of 1986: Estate Agents Amendment Act, 1986.
GOVERNMENT GAZETTE, 23 APRIL 1986 No.10202 3
ESTATE AGENTS AMENDMENT ACT, 1986 Act No. 40, 1986
GENERAL EXPLANATORY NOTE:
[ ] Words in bold type in square brackets indicate omissions from existing enactments.
Words underlined with solid line indicate insertions in existing enactments.
ACT To amend the Estate Agents Act, 1976, so as to provide that the
board may in certain circumstances pay audit fees out of its funds and thereafter recover them from the estate agent con- cerned; to make further provision regarding payments to be made out of the Estate Agents Fidelity Fund; to amend the requirements in connection with the issue of a fidelity fund certificate; to provide that interest may in certain circum- stances be paid out of the Estate Agents Fidelity Fund; to provide that an independent contractor rendering services to an estate agent shall be the holder of a fidelity fund certi- ficate but that fidelity insurance need not be taken out in re- spect of him; to require that a fidelity fund certificate be re- turned to the board in the case of certain disabilities of the holder thereof and on the liquidation of a company or a close corporation; to make further provision concerning acts con- stituting improper conduct; to further regulate the require- ments concerning trust accounts and the auditing thereof; and to provide that an estate agent shall not be entitled to re- muneration in respect of transactions concluded by him while not complying with certain provisions of the Act; and to provide for incidental matters.
(English text signed by the State President.) (Assented to 9 Apri/1986.)
BE IT ENACTED by the State President and the Parliament of the Republic of South Africa, as follows:-
1. Section 9 of the Estate Agents Act, 1976 (hereinafter refer- red to as the principal Act), is hereby amended by the substitu-
5 tion for paragraph (b) of subsection (2) of the following para- graph:
"(b) if the board- (i) after an investigation has found that an estate
agent failed to comply with any duty imposed upon 10 him in terms of this Act; [or]
(ii) has incurred any liability to pay attorney and client costs in respect of any proceedings instituted by it in terms of this Act for the recovery from an estate agent of any amount which is payable by him to
15 the board or the fund; or (iii) has incurred any liability to pay audit fees in re-
spect of an audit done on the instructions of the board in a case where an audit contemplated in sections 29 and 32 4 has not been done
20 the ooar may recover t e costs o sue mvestigation in so far as it relates to such duty or the taxed amount of
Amendment of section 9 of Act 112 of 1976, as amended by section 4 of Act 57 of 1980 and section 6 of Act 51 of 1984.
GOVERNMENT GAZETTE, 23 APRIL 1986
ESTATE AGENTS AMENDMENT ACT, 1986
such attorney and client costs or the amount of such au- dit fees, as the case may be, from the estate agent con- cerned.".
2. Section 13 of the principal Act is hereby amended by the 5 substitution for paragraph (c) of the following paragraph:
"(c) all legal, accounting and other expenses incurred in in- vestigating and defending clatms made against the fuUct or otherwise incurred in relation to the fund;".
3. Section 16 of the principal Act is hereby amended by the 10 substitution for subsection (3) of the following subsection:
"(3) 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 appli- cant concerned [complies with the requirements of this Act]
15 is not dis ualified in terms of section 27 from being issued wit a fidelity fun certificate, the board shal in the pre- scribed 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
20 such application relates.".
4. Section 19 of the principal Act is hereby amended by the substitution for subsection (3) of the following subsection:
"(3) [No amount shall be paid] The board may at its dis- cretion pay out of the fund [as] interest on the amount of any JUdgment obtained or any claim admitted against the fund: Provided that- ( a) such interest shall not run from a date earlier than the
date on which the board received notice in writing by or on behalf of a claimant of his claim against the fund; and
(b) the rate of interest shall not exceed the prevailing rat of interest prescribed under section 1 (2) of the Pre- scribed Rate of Interest Act, 1975 (Act No. 55 o 1975). "0
35 5. The following section is hereby substituted for section 26 of the principal Act: "Prohibition 26. No person shall perform any act as an estate of rendering agent unless- of services ) fi f 'fi b · (a a valid delity und certt cate has een tssued to
40 ~:~:~~ him, and to every person employed as an estate certain agent by him, including an independent contrac- ~~~;. tor rendering services to him, and, if such per-
son is a company, to every director of such com- pany, and, if such person is a close corporation,
45 to every member referred to in paragraph (b) of the definition of 'estate agent' of such corpor- ation; and
(b) he has, in respect of every person who is in his employment, with the exception of such inde-
50 pendent contractor, taken out fidehty msurance to an amount which in the opinion of the board is sufficient.".
6. Section 28 of the principal Act is hereby amended by the addition of the following subsections:
55 " 5 Subject to the provisions of subsection (1), any per- son or, if such person is a company, any director of such company or, if such person is a close corporation; any mem- ber referred to in paragraph (b) of the definition of estate agent of such corporation, shall, if he becomes subject to
60 any disqualification referred to in section 27, immediately cease to perform any act which he performs as an estate agent and shall forthwith return his fidelity fund certificate to the board.
Act No. 40, 1986
Amendment of section 13 of Act 112 of 1976.
Amendment of section 16 of Act 112 o£1976, as substituted by section2 of Act 53 of 1982.
Amendment of section 19 of Act 112 of 1976, as amended by section 6 of Act 57 of 1980 and section 3 of Act 53 of 1982.
Substitution of section 26 of Act 112 of 1976, as amended by section 3 of Act 10 o£1985.
Amendment of section 28 of Act 112 of 1976, as amended by section 8 of Act 57 of 1980, section 5 of Act 53 of 1982 and section 5 of Act 10 of 1985.
GOVERNMENT GAZETTE, 23 APRIL 1986 No.10202 7
ESTATE AGE~TS AMENDMENT ACT, 1986
The rovisions of subsection 5 shall mutatis mutandis apply to a company or close corporation being wound up in terms of the Companies Act, 1973 (Act No. 61 of 1973), or the Close Corporations Act, 1984 (Act No. 69 of 1984); as the.case may be.".
7. Section 30 of the principal Act is hereby amended- (a) by the substitution for paragraph (b) of subsection (1)
of the following paragraph: "(b) fails in respect of any act performed by him as an
estate agent to give a full and proper [account] ~ planation in writing, within 30 days of being called upon m wntmg to do so, to any person having a material interest in the performance of such act;";
(b) by the substitution for paragraph (d) of subsection (1) of the following paragraph:
"(d) fails to furnish in writing within such period as the board may determine such information as the board may request in writing and reasonably re- quire in order to exercise its powers properly under this Act·"· and
(c) by the deletion ofpar'agraph (f) of subsection (1).
Act No. 40, 1986
Amendment of section 30 of Act 112 of 1976, as amended by section 9 of Act 57 of 1980 and section 6 of Act 10 of 1985.
8. Section 32 of the principal Act is hereby amended- Amendment of (a) by the .substitution for subsection (1) of the following ~~~iff23;f~~76,
subse~tiOn: as amended by "(1) Every estate agent shall open and keep [a]~ section5of
or more separate trust [account] accounts, which shall ~~~i:~?:l8 • contain a reference to this section, with a bank or Act 57 of 1980 and building society and such estate agent or his employ~ ~~ti~f ~f1~~4 . as the case may be, shall forthwith deposit therein the moneys held or received by him in his capacity as an estate a ent or as an employee of such estate agent, on [account] behalf of any person, an t e name of such bank or blilidillg society and the number of each such trust account shall forthwith be notified to the board.";
(b) by the substitution for subsection ( 4) of the following subsection:
"(4) Any auditor who does an audit contemplated in subsection (3) (b), shall forthwith after completing such audit, transmit to the board a report in the [prescribed] form from time to time determined by the board, in re- gard to his findings [to the board], and a copy thereof to the relevant estate agent."; and
(c) by the substitution for paragraph (c) of subsection (7) of the following paragraph:
"(c) any estate agent [fails to apply timeously for a fidelity fund certificate in respect of any year] be- comes subject to any disqualification referred toTn section 27,".
9. Section 33 of the principal Act is hereby amended- ( a) by the deletion of paragraph (iA) of subsection (1); (b) by the substitution for paragraph (iB) of subsection (1)
of the following paragraph: "(iB) prescribing the portion of the interest which, and
the circumstances in which such portion, may be refunded to the estate agent concerned in terms of section 32 [(3)] ill (d);"; and
(c) by the deletion of paragraph (j) of subsection (1).
Amendment of section 33 of Act 112 of 1976, as amended by section 6 of Act 60 of 1978 and section 13 of Act 57 of 1980.
GOVERNMENT GAZETIE, 23 APRIL 1986
ESTATE AGENTS AMENDMENT Acr, 1986
10. The following section is hereby inserted after section 34 of the principal Act: "Estate 34A. Any · erson acting contrary to the provisions ~fi'e~;;,o:e:n- of section 26, shall not be entl e to remuneration m
5 muneration respect of a transaction concluded by him as an es- in certain cir- tate agent while failing to comply with the provisions cumstances. of section 26. ".
Act No. 40, 1986
Insertion of section 34A in Act 112 of 1976.
11. This Act shall be called the Estate Agents Amendment Short title. Act, 1986.