Submissions by the LSSA

June 1st, 2017
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By Nomfundo Manyathi-Jele

The Law Society of South Africa (LSSA) has submitted comments on the Property Practitioners Bill (B-2016) earlier this year.

In its submissions, the LSSA recommended that words should be added in some of the sections, and that the requirement in s 49(a)(vii) for a valid tax clearance certificate in order for a property practitioner to practise, may discriminate against or impede on the constitutional rights of property practitioners. ‘Section 22 of the Constitution provides that every citizen has the right to choose their trade, occupation or profession freely. An error on the part of the South African Revenue Service (Sars) may result in a practitioner’s tax clearance being suspended, resulting in a Fidelity Fund Certificate not being issued, which will either preclude an otherwise qualified person from practising as [a] property practitioner or turn him or her into a criminal for practising without a Fidelity Fund Certificate,’ the LSSA stated in its submissions.

The LSSA said that a further category (d) should also be included in s 65 to include specialist reports on the condition of the property. The LSSA submitted: ‘Although Section 66 requires the mandatory disclosure form, many purchasers require, and sellers offer, an independent specialist report on the condition of the property. This practice is likely to spread. The purchaser strongly relies on such specialist report, which becomes very important when any defects or problems manifest. For obvious reasons, it will be undesirable if property practitioners influence such reports and/or demand hidden kickbacks from the specialist.’

In the submissions, the LSSA also stated that s 67 required serious reconsideration as ‘it should replicate Section 83(8)(a) of the Attorneys Act 53 of 1979, which essentially prohibits any person, except a practising legal practitioner, in expectation of any fee, gain or reward, direct or indirect, to himself or to any other person, from drawing up, preparing or causing to be drawn any agreement, deed or writing relating to immovable property or to any right in or to immovable property, other than contracts of lease for periods not exceeding five years, conditions of sale or brokers’ notes.’

The LSSA states: ‘Firstly, it is not clear why the Bill requires the seller (and not the property practitioner) to “draft” the agreement to sell in any of eleven official languages when by definition it is the property practitioner who introduces the purchaser (with its particular language requirements) to the seller, almost invariably with a pre-printed offer to purchase in English under the practitioner’s brand.

Secondly, how is a valid written “offer to purchase” constituted unless first drafted in a language different from what the seller can write and understand? What happens if another purchaser in the meantime offers to purchase in a document that the seller can understand?

Thirdly, the Bill appears not to take into account Section 83(8)(a) of the Attorneys Act 53 of 1979, which section prohibits any non-attorney from drawing up or preparing any agreement relating to immovable property (except leases not exceeding five years).’

Magistrate’s Courts Rule 63

The LSSA has made comments to the Rules Board for Courts of Law on the proposed amendments to the Magistrate’s Courts Rule 63 – filing, preparation and inspection of documents.

In its comments the LSSA agreed that the Magistrate’s Court Rules, providing for the indexing and pagination of court files, should be aligned with High Court Rule 62(4) thus the compliance with this obligation will be reduced from ten to five days.

The LSSA is also of the firm view that not all matters, which come before court should be indexed and paginated. It recommended that the requirement be harmonised with that which is followed in the High Court, which is that any matter before court, where the papers are in excess of 50 pages, be paginated and indexed.

To view the full submissions go to www.LSSA.org.za

Nomfundo Manyathi-Jele, Communications Officer, Law Society of South Africa, nomfundom@lssa.org.za

This article was first published in De Rebus in 2017 (June) DR 19.