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Estate Agency Affairs Act (previous short title: Estate Agents Act)


Published: 1976-07-23

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Estate Agents Act
STAATSKOERANT VAN DIE REPUBLIEK VAN. SUID-AFRIKA
. REPUBLIC OF·· SOUTH; AFRICA
. .. '
·.GOVERNMENT~ GAZETTE As •n Nuusblad by die Poskantoor Geregistr~er Registered ai the Post Office as a Newspaper
Prys · . 20c Price ' l .· ~ '
Oorsee · 30c · · Overseas POSVRY-POST FREE
VoL. 133] _KAAPSTAD~ ~3 JULIE 1976
.; . CAPE TOWN, 23 ·JULY 1976
[No. 5221
. . ..
DEPARTEMENT VAN DIE·EERSTE MINISTER . · DEPARTMENT OF TilE PRIME MINISTER
No. 1240. 23 Julie 1976. · No. 1240 . . 23 July 1976.
Hierby word bekend. gemaak dat die ·staatspresident sy goedkeuring geheg het aan die onderstaande Wet wat hierby ter algemene inligti~g gepubliseer word:---: · .
No. 112 van 1976: Wet op Eiendomsagente; · 1976.
It is hereby notified that the State President has assented to the following Act which is hereby published for general information:-
No. 112 of 1976: Estate Agents Act. 1976.
Please note that most Acts are published in English and another South African official language. Currently we only have capacity to publish the English versions. This means that this document will only contain even numbered pages as the other language is printed
on uneven numbered pages.
GOVERNMENT GAZETIB •. 23 JULY 1976
ESTATE AGENTS ACI', 1976 .
ACT .To .. provide for the eS·tablishment of an Estate Agents Board and · an Estate Agents Fidelity Fund; for the control of certain
activities of estate agents; and for incidental m~tters.
(A{rikaan!.· text !.igned by the State President.) · (Assented to 5 July 1976.) ·
BE IT ENACTED by the State President, .the Senate and the . . House of Assembly of the Republic of South Africa, as
follows:-· · ~ . . .
· No, 5221
. i\ct~o.112,1976
1. In this Act, unless the context otherwise indicates- · Definitions. (i) "annual financial statements" means a balance sheet, . an income statement and any notes thereon; (iv) ·. (ii) "bank" means a banking institution registered under . · · the Banks Act, 1965 (Act No. 23 of 1965); (i), · : · .
(iii) "board" means the. Estate Agents ·Board established ·. .• under section 2; (x) :.: ' · ! · .. . . , . : .
(iv) "building society" means a permanent building society · registered under the· Building Societies Act,l965 (Act
No. 24 of 1965); (ii) · . . . .- · ,; · . . (v) "court" means a ·court. of . the provincial or local
· ·division of the Supreme Court of South Africa having ·' jurisdiction, or a judge of any such court; (viii)
(vi) "estate agent"- . : · . . : · (a) means any person who for the acquisition of gain
on: his own account or in partnership; . in any manner holds himself out as a person who, or directly or indirectly advertises that he, on the
· instructions of or on behalf of any other person- (i) sells or purchases immovable property or any
interest in immovable property or any busi- ness undertaking or negotiates in connection therewith or canvasses or undertakes or offers to canvass a seller or purchaser therefor; or
(ii) lets or hires immovable . property ·or any ' . ' interest in immovable property or any busi-
ness undertaking or negotiates in connection therewith or canvasses or undertakes or offers
. to canvass a lessee or lessor therefor; or · . (iii) collects or receives any moneys payable on
· account of a lease of immovable property or . any business undertaking; or ·
(iv) in addition to the performance of any act referred to in subparagraph (i) ,(ii) or (iii)- (aa) collects or receives any moneys payable
on account of a contract of purchase and sale, including· any agreement or inter- mediate transaction as defined in section 1 of . the Sale of Land on Instalments Act, 1971 (Act No. 72 of 1971); or
(bb) collects or receives any other moneys, in- cluding insurance premiums, payable in respect of immovable property or any interest in immovable . property or any business undertaking; or · · ·.·
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GOVERNMENT GAZETIB, 23 JULY 1976 - No. 5221
ESTATE AGENTS AGr,1976 . Jlct~o.ll%,1976
(cc) renders . any such other service as the Minister on the recommendation ofthe
. board may specify from time to time by notice in the Gazette; . , . · .·
(b) for purposes of. section 3 (2) (a), includes· any director of a company which is an estate agent as defined in paragmph (a);
(c) ·for purposes of sections 7, 8, 9, 12, 15, 16, 18, 19, 21, 26, 27, 30 and 33, includes~
(i) any director of a company which is an estate ·. . agent as defined in paragraph (a); and
.·. (ii) any person who. is . employed. by an estate · agent as defined in paragraph (a) and per·
forms on his behalf any act. referred to in subparagraph (i) or (ii) of the said paragraph;
(d) does not include an attorney who on' his own account or as partner in a firm of attorneys or as member of a professional company performs any
: . . act referred to in paragraph (a), in connection with ·his activities as a practising attorney:
Provided that, for the purposes of· this 'definition, "advertise" does not include to advertise in compliance
· with the provisions of any law; (iii) · . (vii) "fidelity fund certificate" means . a . fidelity fund
certificate referred to in section 16; (vi) · , (viii) "fund" means the Estate Agents · Fidelity·. Fund
established under section 12 (1); (v) . . (ix) "Minister" means the Minister of Economic Affairs;
(ix) (x) "prescribed" means prescribed by regulation; (xii)
. (xi) "Republic" includes · the · territory of South West Africa; (xi) ' · · · · · · ·
(xii) "this Act" includes any regulation issued thereunder • . · (vii) . . . .
. I I ' ' . r · '
CHAPTER I
ESTATE AGENTS BOARD ·
2. There is hereby established a juristic· person to be known Establishment of as the Estate Agents Board. · · · . · Estate Agents
Board.
3. (1) The board shall consist of not fewer than nine and not Constitution of more than eleven members appointed under subsection (2) board. , , · by the Minister. · · · ·
· (2) The Minister shall appoint as members of the board- (a) not fewer than eight estate agents from among at
least fourteen estate agents whose names have been submitted for that purpose by associations or organi· zations of more than five years standing which, in the opinion of the Minister, are representative of estate agents in the Republic; · . · . .
· (b) not more than three other persons who, in the opinion of the Minister, are fit to serve as members of the board. · ·
;
(3) If after the expiry of a period of three months from the date on which the Secretary for Commerce in writing requested the associations or organizations referred to in subsection (2) (a) to submit a list of estate agents as contemplated in that sub- section, such associations or organizations have failed to submit the said list to the said Secretary or have submitted to the said Secretary· a list of estate agents · which is defective in some . or
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GOVERNMENT GAZETIE, 23 JULY 1976
ESTATE AGENTS ACT, 1976 '•
other respect, the Minister shall appoint suitable estate agents as members of the· board in ·the place of the estate agents he would have appointed if the· said associations or organizations had not so failed to submit the said list or had not submitted a list defective in some or other respect. .
(4) The board shall from time to time elect from· among its members a chairman and vice-chairman of the board, who shall hold office for a period of one year, and, if neither the chairman nor the vice-chairman is present at any meeting of the board, the members present shall elect from among their number a: person to preside at such meeting.
(5) A member. of the board shall hold office for such period, but' not more than three years, and on such conditions as the Minister may determine at the time of his appointment: Provi- ded that ·any member shall, subject to the provisions of sub- sections (2) and (3), on the expiry of his term of office be eligible for reappointment.
(6) No person shall be appointed as a member of the board if he-· ·· · · · · ·
(a) is an unrehabilitaied insolv~nt; . ' · (b) has failed or is unable to comply in full with a judge-
ment or order, including an order as to costs; given against him by a court of law in civil proceedings;
(c) has been convicted of an offence involving an element of dishonesty or has been · sentenced for any other offence to a period of imprisonment without the option of a fine; or
(d) is not a South African citizen permanently resident in the Republic. · . · · ·
(7) A member ofthe board shall vacate his office if he- ( a) becomes subjected to any disqualification referred to
' in subsection (6); ' . (b) becomes of unsound mind;· · ,. (c) in the case of a member appointed in accordance with
the provisions of section (2) (a) or (3), ceases to be an estate agent; · · ·
(d) fails to comply with a ·condition referred to in sub- section (5) applicable to him; or · :
(e) has been absent from more than two consecutive meetings of the board without the leave of the board.
(8) If any member of the board dies, or resigns by notice in writing addressed to the Minister, or ceases to be a member of the board in terms of. subsection (7), the Minister may, with due regard to the provisions of subsections (2) and_ (3), appoint any person as successor to such member for the unexpired period of office of such member.
No. 5221
Act No.112, 1976
4. (1) The board shall meet for the first titne at a time and Meetings or place determined by the Minister and thereafter at least once board. m· each financial year at such times and places as the chairman or. in his absence, the vice-chairman may determine. . '
(2) The chairman or, in his absence, the vice-chairman may . at any time of his own accord or at the written request of not fewer than six members convene a special meeting of the board.
(3) A notice convening a special meeting of the board shall state the purpose or such meeting. , . . . ·
(4) The quorum for any meeting of the board shall be six members thereof. · . . ..
(5) ·The decision of a majority of the members of the .board present at a meeting of the board shall constitute the decision of the board, and in the event of an equality of votes on any matter, the person presiding nt the meeting in question shall· have a casting vote in addition to his deliberative vote.
(6) No decision taken by the board or act performed under the authority of the board shall be invalid merely by reason of a vacancy on the board or of the fact that any person not entitled to sit as a member of the board, sat as a member of the board at
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GOVERNMENT GAZETIE; 23 JULY 1976 No. 5221 9
ESTATE AGENTS A cr. 1976 Ad No.112,1976 the time the decision was taken or the act was authorized, if the decision was taken or the act was authorized by the majority of the members of the board present at the time and who were entitled to sit as members of the board.
' 5. Any member of the · board who is not in the full-time Remuneration and .
employ of the Sate, shall be paid out of the funds of the board allow~nces rtf d such remuneration and allowances as may be determined mem ers 0 oar • generally or in any particular case by the Minister in consul- tation with the Minister of Finance.
6. The work incidental to the carrying out of its functions by Staff of board. the board, shall be performed under its directions and control by persons appointed by the board on such conditions and at such remuneration as the Minister may in consultation with the Minister of Finance approve.
7. · The object of the board shall be to maintain and. promote Object of board . . the integrity of e~tate agents. ·
8. The board shall, in addition to any other power conferred Powers of board. upon it by this Act, have the power-
(a) to appoint committees, of which persons other than members of the board may with the approval of the Minister be members, to advise the board on any matter in respect of which the board possesses any power; .
(b) to frame and publish, with the approval of the Minister, a code of conduct which shall be complied with by estate agents and to take such steps as may be neces- sary or expedient to ensure such compliance;
(c) to encourage and promote the improvement of the standard of training of and services rendered by estate
· agents; .(d) to receive any application for exemption from the
provisions of this Act and to submit such application to the Minister;
(e) in general to take such other steps and to perform such other acts as may be necessary or expedient in
· order to achieve its object.
9. (1) The funds of the board shall consist of-'- Funds of board. (a) the prescribed levies paid· to the board by estate
agents; · (b) all moneys derived from any investments; (c) all other moneys which may accrue to the board from
any other source. . · . · (2) The board shall utilize its funds to defray the expenses
incurred by the board in the performance ofits functions and the exercise of its powers under this Chapter: Provided that any moneys or other property donated or bequeathed to the board shall be utilized in accordance with the conditions of such · donation or bequest.
(3) The board shall deposit all the moneys received · by it under this Chapter in an account opened by it at any bank approved by the Minister.
(4) The board may invest any moneys received under this Chapter and not required for immediate use, with the Public Debt Commissioners or in such other manner as may be deter- mined by the Minister in consultation with the Minister of Finance.
10. (I) The financial year of the board shall end in each Keeping of year upon the date determined by the board with the approval accounting of the Minister. , ' rccor~s,
d 11 drawmg up of (2) The boar sha cause- financial state- ( a) to be kept in one of the official languages at an address ments and ·
in the Republic approved by the Minister such ac- auditing. , counting records as are necessary fairly to reflect and
explain the state of affairs-
GOVERNMENT GAZETIE, 23 JULY 1976
.. ESTATE AGENTS ACI', 1976
(i) of all moneys received or expended by it in terms of this Chapter;
· (ii) . of all its assets and liabilities; (iii) of all its financial transactions and the financial
position of its business; and (b) as soon as possible, but not later than six months,
after the end of each financial year, annual financial statements to be prepared showing. with all the appro- priate particulars, the moneys received and the expen- diture incurred by it during. and its assets and liabili-
. :ties at the end of, the financial year. , (3} The accounting records and financial statements referred
to in subsection (2) shall be audited by an auditor appointed by the board.
No. 5221
11. (1) The board. shall furnish the Minister with such Report by board. information as he· may desire from time to time in connection with the functions and firiimcial position of the board, and shall in addition submit to the Minister an annual report, including annual financial statements audited in accordance with section 10 (3}, on its functions.
(2) Every report furnished under subsection (1) shall as soon as may be practicable be laid upon the Table of the Senate and
. of the House of Assembly by the Minister . .
CHAPTER II
ESTATE AGENTS FIDELITY FUND
. 12• (1) There is hereby. established a fund· to be known as Establishment the Estate Agents Fidelity Fund, into which shall be paid- and control of
(a) all moneys paid as annual contributions in accordance ~da1~~e~J with the provisions of this Chapter to or on account 1 e 1 u •. of the fund; . . .
(b) income derived from the investment of moneys iri the fund; · · ·
(c) all moneys recovered by or on behalf of the fund in the exercise of any right of action conferred by this Chapter;
(d) all moneys received on behalf of the fund from· any insurance company;
(e) interest paid to the fund in terms of section 32 (2) (c); and · · -'
(f) any other moneys accruing to the fund from any other source. · · ·
(2) The fund shall be controlled and managed by the board, which shall utilize the moneys in the fund in accordance with the provisions of this Chapter. · . · . .
(3) All moneys forming part of the fund shall, until they are invested or spent in accordance with the provisions of this Chapter, be paid into a bank approved. by the Minister, to the credit of an accoiuit to be called the Estate Agents Fidelity Fund ·Account. · ·
13. Subject to the provisions of this Chapter, there shall be Payments out paid out of the fund whenever it is required- of fund.
(a) the amount of all claims, including costs, allowed or established against the fund as hereinafter provided;
(b) any contribution in the discretion of the board in respect of any expense . incurred . by any claimant in
. establishing his claim; . . . . .. (c) all legal expenses incurred in defending claims made
against the fund or otherwise incurred in relation to the fund; ·
(d) all premiums ·payable in respect of contracts of insurance entered into by the board in terms 'of section 23;
. (c) the . expenses involved in the control of the fund, including remuneration and allowances to members of the board in connection with the management of the fund;
' , ..
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. GOVERNMENT GAZETTE, 23 JULY 1976 No. 5221 13
ESTATE AGENTS Acr, 1976 Act No. 112, 1976
(f) interest on and redemption of loans negotiated by the board on behalf of the fund; . .
{g) any other moneys which shall or may be paid out of the fund in accordance with this Act. · ·· ·
14. The board shall- Auditing of . (a) cause to be kept in one of the official languages at an accounts of fund.
address in the Republic approved by the Minister such ' accounting records as are necessary fairly to reflect and explain the state of affairs-
(i) of all moneys received or expended by or . on . behalf,ofthe fund; . ·> . . . (ii) of all the assets and liabilities of the fund; (iii) of all the financial transactions of the fund and the
· financial position of its business; . · . · . (b) as soon as ppssible, but not later than six months,
after the end of each financial year of the fund ending · in each year on a date determined by the board with 'the ·approval of the Minister, cause annual financial . statements in respect of the fund to be prepared
. showing, with all the appropriate particulars, the -~moneys received and expenditure incurred by the fund ·during, and its assets and liabilities at the end of, the financial year of the fund; .
·' ·(c)· cause 'the accounting records and anilllal financial statements of the fund to be audited by an auditor appointed by the board; and · · . . ·
~d) submit to the Minister the audited annual finanCial statements . of the · fund in respect of each. financial year. ·
. ' '
15. Every estate agent shall, on making application in ·any. COntributions to year for a fidelity fund certificate in accordance with the ' pro- fund by estate visions of section 16, in addition to the levies referred to in ~gents. · section 9 (1) (a), pay as an annual contribution to the fund such · amount as may be prescribed. , · ;· '· ,
•.
16. (1) · Every estate agent or prospective estate agent shall, APP!ications for within the prescribed period a~d in the pr~scribed manner, fid~J:Sr~riJ apply to the board for a fidelity fund certdicate, and such certifi~tes application shall be accompanied by the levies referred to in · section 9 (1) (a) and the contribution referred to in section 15.
(2) If the board upon receipt of any application and the · levies and contribution referred to in subsection (1), is satisfied that the . applicant concerned complies with the requirements of this Act, the board shall in the prescribed form issue to such applicant a fidelity fund certificate which shall be valid until 31 December of the year to which such application relates:
(3) No fidelity fund certificate shall be issued . unless and until the provisions of this Act are complied with, and any fidelity fund certificate issued in contravention of the provisions of.~his Act shall be invalid and shall be returned .~o the board at 1ts request.
17~ Any . moneys in the fund not immediately. required for Investm