Page 12 - Nexia SAB&T Property and Tax Guide 2024

❖ The property practitioner must apply to the Board of Authority for a Fidelity Fund Certificate every 3 years,
and must display the Certificate in every place of business from where he conducts property transactions,
to enable consumers to easily inspect it. The Board must issue the Certificate within 30 days. Failure to do
so will result in the application being deemed to have been approved and the Board must upon written
request by the applicant, produce the Certificate within 10 days.
❖ A valid Fidelity Fund Certificate must be held for all property practitioners within the agency or business.
If an entity is a company, close corporation, trust or partnership, then every director, member, trustee and
partner in that business must be issued with a Fidelity Fund Certificate, and failure to do so constitutes
an offence.
❖ The Regulations provide that a property practitioner, who, on 1 February 2022 holds a Fidelity Fund
Certificate issued under the previous Act shall be entitled to continue acting as a Property Practitioner
under the Act, using such existing Fidelity Fund Certificate, until the end of the year during which the
effective date falls.
◆ Consumer protection – Property Defects Disclosure
❖ It is mandatory for sellers or lessors to provide a comprehensive property defects disclosure document as
part of a property transfer or lease, which will form part of the sale or lease agreement, and no mandate
may be accepted by a property practitioner from a seller or lessor without this document, and a copy
thereof must be provided to a prospective purchaser or lessee of the property.
◆ Inspectors, Compliance Notices and Record Storage
❖ Inspectors may be appointed by the CEO of the Board of Authority. They may, at any reasonable time, and
without prior notice, warning or a warrant, conduct an inspection at the business premises of any property
practitioner in order to determine whether the provisions of the Act have been complied with. If the
property practitioner conducts his business at his private residence, the inspector must notify the property
practitioner in advance and in writing. The inspector may issue compliance notices- which could include
the imposition of a fine. The property practitioner is required to keep records, including correspondence,
legal agreements, copies of advertising and marketing materials, for 5 years. These can be stored
electronically.
◆ Mediation, Adjudication and Appeal
❖ The Board of Authority may consider complaints by members of the public against property practitioners
in respect of financing, marketing, managing, letting, hiring and the sale and purchase of property, and
may refer the complaint for mediation. Should a property practitioner have been served with a compliance
notice and has failed to comply, or to pay the fine stated therein timeously, or mediation has failed, the
Board of Authority may cause a notice of adjudication to be served on that person. Any person aggrieved
by the decision of adjudicator may appeal against such a decision to the Adjudication Appeal Committee.
◆ Remuneration
❖ In order for a property practitioner to enforce the collection of remuneration (commission), a valid Fidelity
Fund Certificate must be held for all property practitioners within the agency or business – and failure to
have it may require the property practitioner to refund any commission paid by the seller. Agents may only
receive commission from a property sale on registration (and this requirement cannot be amended by
agreement). A conveyancer may not pay any remuneration or other monies to a property practitioner unless
that property practitioner has provided the conveyancer with a certified copy of his, her or its Fidelity Fund
Certificate, valid during the period, or on the date of the transaction to which the payment relates.

THE ELECTRONIC DEEDS REGISTRATION SYSTEMS ACT

The Electronic Deeds Registration Systems Act (19 of 2019), was signed into law on the 19 September 2019, and
published in the Government Gazette on 3 October 2019. Only Section 2 is currently operational. The remainder
of the Act will come into operation on a date fixed by the President by proclamation in the Gazette (who may set
different dates for the coming into operation of any or certain provisions of this Act for the different deeds registries).
The Act aims to facilitate the development of an Electronic Deeds Registration System, known as e-DRS – which will
enable the electronic processing, preparation, lodgement and registration of deeds and documents by conveyancers
and the Registrar of Deeds over the internet.

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