34 CODE OF CONDUCT
34.1 Supplementation
This code of conduct may be supplemented by the Authority after the effective date so as
to provide for the regulation of any industry not catered for in this code of conduct as at the
effective date, provided always that the Authority shall consult in good faith with the industry
representative bodies in the industry concerned as to the terms of such proposed code of
conduct prior to any such supplementation.
34.2 Duties Applicable to All Property Practitioners
34.2.1 In terms of a property practitioner's general duty to members of the public and other
persons or bodies, a property practitioner -
34.2.1.1 shall not in or pursuant to the conduct of his business do or omit to do any act which
is or may be contrary to the integrity of property practitioners in general;
34.2.1.2 shall protect the interests of his client at all times to the best of his ability, with due
regard to the interests of all other parties concerned;
34.2.1.3 shall not accept a mandate if the performance of the mandate requires specialized
skill or knowledge falling outside his field of competence, or he has not completed
the required qualifications, unless he will in the performance of the mandate be
assisted by a person who has the required skill or knowledge and this fact is
disclosed in writing to the client;
34.2.1.4 shall not in his capacity as a property practitioner willfully or negligently fail to perform
any work or duties with such degree of care and skill as might reasonably be
expected of a property practitioner;
34.2.1.5 shall comply with both the Act, these regulations and all applicable bylaws; and
34.2.1.6 shall not through the medium of a company, close corporation or third party, or by
using such company, close corporation or third party, or by using such company,
close corporation or third party as a front or nominee do anything which would not
be permissible for him to do if he were operating as a property practitioner.
34.2.1.7 A property practitioner -
34.2.1.8 shall not solicit or influence any person entitled to trust funds under his control to
make over or pay to the property practitioner directly or indirectly any interest on
moneys deposited or invested in terms of section 54 (1) or 54 (2) of the Act;
34.2.1.9 shall, before he receives any money in trust in respect of a contract of sale or lease,
disclose to the parties concerned that unless they agree in writing to whom interest
earned on such money must be paid, the interest may accrue to the Property
Practitioners Fidelity Fund; and
34.2.1.10 shall, if any money is invested by him pursuant to section 54 (2) of the Act or
pursuant to an instruction by the party entitled to the interest on money held in trust
by the property practitioner -
34.2.1.10.1 invest such money at the best interest rate available in the circumstances at the
bank or building society where he normally keeps his trust account or
accounts; and
34.2.1.10.2 pay the full amount of the interest which accrued on the investment to the party
entitled to such interest.
34.2.2 No property practitioner shall, without just cause, divulge to any third party any
confidential information obtained by him concerning the business affairs, trade secrets
or technical methods or processes of a client or any party to a transaction in respect of
which he acted as a property practitioner.
34.3 Duties Applicable to Estate Agents
Mandates
34.3.1 No estate agent shall -
34.3.1.1 offer, purport or attempt to offer any immovable property for sale or to let or negotiate
in connection therewith or canvass or undertake or offer to canvass a purchaser or
lessee therefor, unless he has been given a mandate to do so by the seller or lessor
of the property, or his duly authorized agent;
34.3.1.2 on behalf of a prospective purchaser or lessee, offer, purport or attempt to offer to
purchase or lease any immovable property or negotiate in connection therewith or
canvass, or undertake or offer to canvass a seller or lessor therefor, unless he has
been given a mandate to do so by such prospective purchaser or lessee, as the case
may be, or his duly authorized agent;
34.3.1.3 accept a sole mandate or the extension of the period of an existing sole mandate,
unless -
34.3.1.3.1 all the terms of such mandate (or extension, as the case may be), are in writing
and signed by the client in a manner acceptable in law, including by way of an
electronic signature as permitted under the Electronic Transactions and
Communications Act, 2002; and
34.3.1.3.2 the expiry date of the mandate (or extension, as the case may be), which shall
be expressed as a calendar date, is specifically recorded in the written sole
mandate (or extension, as the case may be);
34.3.1.4 accept a sole mandate which contains a provision conferring upon him -
34.3.1.4.1 an option to extend the sole mandate for a certain period after expiry of the sole
mandate; or
34.3.1.4.2 a mandate to continue to render the same service referred to in the sole mandate,
after expiry of the sole mandate;
34.3.1.5 accept a sole mandate which also confers upon him a power of attorney to act on
behalf of the person conferring the mandate, unless the intention and effect of such
power of attorney is fully explained in the document embodying the sole mandate;
34.3.1.6 include, or cause to be included, or accept the benefit of, any clause in a contract of
sale or lease of immovable property negotiated by him, whereby a sole mandate is
directly or indirectly conferred upon him to sell or let the said immovable property at
any time after the conclusion of the said contract;
34.3.1.7 accept any mandate or instructions for work in respect of immovable property if his
interest therein would compete with his obligations towards an existing client in
respect of the same immovable property without first disclosing such interest in
writing to such client;
34.3.1.8 knowingly or negligently make a material misrepresentation concerning the likely
market value or rental income of immovable property to a seller or lessor thereof, in
order to obtain a mandate in respect of such property;
34.3.1.9 accept a mandate in respect of any immovable property if the performance of the
mandate requires specialized skill or knowledge falling outside his field of
competence, unless he will in the performance of the mandate be assisted by a
person who has the required skill or knowledge and this fact is disclosed in writing
to the client; or
34.3.1.10 accept a sole mandate to sell or let immovable property, unless he has explained in
writing to the client –
34.3.1.10.1 the legal implications should the client during the currency of the sole mandate
or thereafter sell or let the property without the assistance of the estate agent, or
through the intervention of another estate agent; and
34.3.1.10.2 what specific obligations in respect of the marketing of the property will be
assumed by the estate agent in his endeavors to perform the mandate,
provided that such explanations, if contained in a standard pre-printed or typed sole
mandate document, shall be in lettering not smaller than that generally used in the
remainder of the document.
Duty to disclose
34.3.2 An estate agent shall -
34.3.2.1 convey to a purchaser or lessee or a prospective purchaser or lessee of immovable
property in respect of which a mandate has been given to him to sell, let, buy or hire,
all facts concerning such property as are, or should reasonably in the circumstances
be, within his personal knowledge and which are or could be material to a
prospective purchaser or lessee thereof;
34.3.2.2 if he conducts his business under a trade name or style other than his own name,
clearly disclose his full name in all correspondence, circulars and other written
documentation; and
34.3.2.3 not perform or attempt to perform any mandate in respect of a particular property if
a current prior mandate, which conflicts with the aforesaid mandate, has been
accepted by him, unless he has disclosed to the person who has given the later
mandate the existence of such prior mandate, and the fact that he will not be the
estate agent's only client in respect of that property.
34.3.3 No estate agent shall purchase directly or indirectly for himself, or acquire any interest
in, or conclude a lease in respect of, any immovable property in respect of which he has
a mandate, without the full knowledge and consent of the person who conferred the
mandate, or sell or let his own immovable property or any immovable property in which
he has any direct or indirect interest, to any prospective purchaser or lessee who has
retained his services, without that purchaser or lessee having full knowledge of his
ownership of, or interest in, such immovable property.
Duty not to make misrepresentations or false statements or to use harmful marketing
techniques
34.3.4 No estate agent shall -
34.3.4.1 in his capacity as an estate agent publish or cause to be published any
advertisement which could create the impression that it was published by the owner,
seller or lessor of immovable property, or by a prospective purchaser or lessee of
immovable property;
34.3.4.2 willfully or negligently, in relation to his activities as an estate agent, prepare, make
or assist any other person to prepare or make any false statement, whether orally or
in writing, or sign any false statement in relation thereto knowing it to be false, or
knowingly or recklessly prepare or maintain any false books of account or other
records;
34.3.4.3 claim to be an expert or to have specialized knowledge in respect of any service if,
in fact, he is not such an expert or does not have such special knowledge;
34.3.4.4 advertise or otherwise market immovable property in respect of which he has been
given a mandate to sell or let, at a price or rental other than that agreed upon with
the seller or lessor of the property;
34.3.4.5 without derogating from the generality of the aforegoing –
34.3.4.5.1 willfully or negligently mislead or misrepresent in regard to any matter pertaining
to the immovable property in respect of which he has a mandate; or
34.3.4.5.2 use any harmful or misleading marketing technique or method or undesirable
practice as declared in terms of section 63 of the Act to influence any person to
confer upon him a mandate to render any service or to sell, purchase, let or hire
immovable property, having regard to the general experience which such person
has concerning property transactions and the circumstances surrounding the
transaction or proposed transaction;
34.3.4.6 use any firm or trading name in respect of his business if such name may give rise
to confusion on the part of the public in respect of the nature of the business carried
on by him;
34.3.4.7 inform a seller or purchaser, or prospective seller or purchaser, of immovable
property in respect of which he has been given a mandate to sell or purchase, that
he has obtained an offer in respect of the property from a purchaser or seller (as the
case may be), unless such offer –
34.3.4.7.1 is in writing;
34.3.4.7.2 has been signed by the offeror in manuscript, albeit that the offer was
subsequently electronically transmitted to the estate agent; and
34.3.4.7.3 is, to the knowledge of the estate agent concerned, a bona fide offer; or
34.3.4.8 affix any board or notice to immovable property indicating that such property is for
sale or hire or has been sold or let, unless –
34.3.4.8.1 the seller or lessor (as the case may be) has given his consent to do so; and
34.3.4.8.2 the estate agent concerned in fact has a mandate to sell or let the property, or in
fact has sold or let the property, as the case may be; or
34.3.4.9 affix or erect any advertising board or notice to solicit business -
34.3.4.9.1 on local authority property, without express written approval by the local
authority; or
34.3.4.9.2 which is in contravention of the regulations of the advertising by-laws of the applicable
local authority.
Duties in respect of offers and contracts
34.4 No estate agent -
34.4.1 who has a mandate to sell or purchase immovable property shall willfully fail to present
or cause to be presented to the seller or purchaser concerned, any offer to purchase or
sell such property, received prior to the conclusion of a legally valid contract of sale in
respect of such property, unless the seller or purchaser (as the case may be) has
instructed him expressly not to present such offer;
34.4.2 who has a mandate to sell immovable property, may present competing offers to
purchase the property in such a manner as to unduly influence the seller to accept any
particular offer without regard to the advantages and/or disadvantages of each offer for
the seller;
34.4.3 shall amend any provision of a signed offer, prior to rejection thereof, or a written
mandate or any contract of sale or lease, without the knowledge and express consent
of the offeror or the parties to the contract, as the case may be.
34.5 An estate agent shall -
34.5.1 explain to every prospective party to any written offer or contract negotiated or procured
by him in his capacity as an estate agent, prior to signature thereof by such party, the
meaning and consequences of the material provisions of such offer or contract, or, if he
is unable to do so, refer such party to a person who can do so;
34.5.2 if he knows that an offer submitted by him as an estate agent to any party has been
accepted, or has not been accepted forthwith notify the offeror of such fact; and
34.5.3 without undue delay furnish every contracting party with a copy of an agreement of sale,
lease, option or mandate with which he is concerned as an estate agent, provided that
the aforegoing shall also apply in respect of an offer to purchase or lease if the offeror
specifically requests a copy thereof.
Remuneration
34.6 No estate agent shall -
34.6.1 stipulate for, demand or receive directly or indirectly any remuneration, commission,
benefit or gain arising from or connected with any completed, pending or proposed
contract of sale or lease which is subject to -
34.6.1.1 a suspensive condition, until such time as that condition has been fulfilled; or
34.6.1.2 a resolutive condition, during the time that the transaction may fall away as a result
of the operation of the said resolutive condition;
34.6.2 convey to his client or any other party to a completed or proposed transaction in which
he acted or acts as an estate agent, that he is precluded by law from charging less than
a particular commission or fee, or that such commission or fee is prescribed by law, the
Authority or any institute or association of estate agents or any other body;
34.6.3 introduce a prospective purchaser or lessee to any immovable property or to the seller
or lessor thereof, if he knows, or has reason to believe, that:
34.6.3.1 such person has already been introduced to such property or the seller or lessor
thereof by another estate agent; and
34.6.3.2 that there is a likelihood that his client may have to pay commission to such other
estate agent, or to more than one estate agent, should the sale or lease be
concluded through his intervention;
34.6.4 include, or cause to be included, or accept the benefit of, any clause in a mandate or in
a contract of sale or lease of immovable property, providing for payment to him by the
seller or lessor of immovable property, of any remuneration, commission, benefit or gain
arising from or connected with a contract of sale or lease, regardless of whether the
purchaser or lessee is financially able to fulfill his obligations in terms of the said
contract;
34.6.5 include, or cause to be included, or accept the benefit of, any clause in a contract of
sale or lease of immovable property negotiated by him, entitling him to deduct from any
money entrusted to him in terms of the contract, any remuneration, commission, benefit
or gain arising from or connected with such contract, provided that the aforegoing shall
not be construed so as to prohibit an estate agent from making such deduction when
such money is actually paid over by him to the party entitled thereto and such party is
in terms of the said contract liable for the payment of such remuneration, commission,
benefit or gain; or
34.6.6 include, or cause to be included, or accept the benefit of, any clause in a contract of
sale of immovable property negotiated by him, providing for payment to the seller, prior
to registration of transfer of the property in the purchaser's name, of any portion of the
purchase price entrusted to the estate agent by the purchaser; provided that the
aforegoing shall not apply if -
34.6.6.1 good cause exists; and
34.6.6.2 the purchaser has prior to his signature of the contract in question, consented in
writing in a document executed independently of the said contract, to such
payment; and
34.6.6.3 such document contains an explanation of the implications and financial risks of such
payment for the purchaser; and
34.6.6.4 such document is signed by both the seller and the purchaser and the estate agent
in question; and
34.6.7 shall not operate a trust account, other than in compliance with the Act and these
regulations.