CONDUCT DESERVING OF SANCTION BY ESTATE AGENTS

Any estate agent shall be guilty of conduct deserving of sanction if he -

a) receives any remuneration for any act performed by him as an estate agent from two or more than two persons whose interests are not in all respects identical in respect of the performance of such act, unless such persons agreed thereto in writing;

b) fails in respect of any act performed by him as an estate agent to give a full and proper explaining in writing, within 30 days of being called upon in writing to do so, to any person having a material interest in the performance of such act;

c) fails to pay any moneys due by him to the board or in respect of the fund within one month after such monies become due;

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 require in order to exercise its powers properly under this Act;

e) contravenes any provision of the code of conduct referred to in section 8(b) or fails to comply with any such provision;

f) [Paragraph (f) deleted by s.7 of Act No. 40 of 1986];

g) fails to comply with any provisions of section 28(8), 29 or 32, or contravenes any provision of section 26, 32A(2)(a) or (b) or 34B;

gA) in his capacity as a director of a company, or member referred to in paragraph (b) of the definition of 'estate agent', of a close corporation, which is an estate agent and which failed to comply with the requirements of section 29 or 32, did not take all reasonable steps to prevent such failure;

h) commits an offence involving an element of dishonesty.

The board or a committee of inquiry may in the prescribed manner bring and investigate any charge of conduct deserving of sanction against any estate agent.

When any estate agent is found guilty of conduct deserving of sanction by the board or a committee of inquiry, the board or the committee of inquiry (as the case may be) may -

a) withdraw the fidelity fund certificate of such estate agent and
i) if such estate agent is a company, of every director of such company;

ii) if he or she is a director of a company which is an estate agent, of such company;

iii) if he or she in partnership acts as an estate agent, of every partner in such partnership;

iv) if such estate agent is a close corporation, of every member referred to in paragraph (b) of the definition of 'estate agent' of that corporation; or

v) if he or she is a member of a close corporation which is an estate agent, of such corporation;

b) impose on such estate agent a fine not exceeding R25 000 or such higher amount as may be prescribed by the Minister by notice in the Gazette in order to counter the effect of inflation, and which is payable to the board;

c) reprimand such estate agent:

Provided that a fine or any portion thereof or the withdrawal of any fidelity fund certificate may be suspended for a period not exceeding three years and on such further conditions as the board or committee of inquiry (as the case may be) may determine.

The acquittal or conviction of an estate agent by any court of law upon any criminal charge shall not be a bar to proceedings against him under this Act on a charge of conduct deserving of sanction, notwithstanding the fact that the facts set forth in the charge of conduct deserving of sanction would, if proved, constitute the offence set forth in the criminal charge on which he was so acquitted or convicted or any other offence on which he might have been convicted at his trial on the said criminal charge.

If the conduct deserving of sanction with which the estate agent is charged amounts to an offence of which he has been convicted by a court of law, a certified copy of the record of his trial and conviction by such court of law shall, upon the identification of such estate agent as the person referred to in the record as the accused, be sufficient proof of the commission by him of such offence, unless the conviction has been set aside by a superior court:  Provided that the estate agent charged shall be entitled to adduce evidence to show that he was in fact wrongly convicted.

If any fine referred to in subsection (3)(b) is not paid in full to the board within one month after it has been imposed, or arrangements for payment is not made to the satisfaction of the board within that period, the fidelity fund certificate of the person on whom the fine has been imposed shall be suspended immediately and be of no force and effect until the fine has been paid or the arrangements have been made.

a) The board or, subject to paragraph (d), a committee of inquiry may, whenever a fine has been imposed on an estate agent as contemplated in subsection (3)(b), order that any portion of the fine, but not exceeding 80% of such fine, be applied towards the payment of compensation to any person who suffered a pecuniary loss as a result of the conduct of the estate agent in question.

b) The board shall, on receipt of the fine imposed on the estate agent in question, make the payment contemplated in paragraph (a):

Provided that no such payment shall be made until all appeals in respect of the imposition of the fine have lapsed or been finalised or been abandoned.

c) This subsection shall not preclude any person from pursuing any civil remedy against the estate agent referred to in paragraph (a):

Provided that if an award is made by a court in favour of a person who has received payment from the board as contemplated in paragraph (b), the court shall take the payment into account.

d) A committee of inquiry may exercise the same powers conferred on the Board under paragraph (a), provided at least one member of such committee is qualified -

i) to be admitted as an advocate under the Admission of Advocates Act, 1964 (Act No. 67 of 1964);
ii) to be admitted as an attorney under the Attorneys Act, 1979 (Act No. 53 of 1979); or
iii) to be appointed as a magistrate under the Magistrates' Courts Act, 1944 (Act No. 32 of 1944), read with section 10 of the Magistrates Act, 1993 (Act No. 90 of 1993), and for an uninterrupted period of at least five years practised as an advocate or attorney or occupied the post of magistrate, or for that period was involved in the tuition of law or rendered services as a legal consultant.

If an estate agent who has been charged with conduct deserving of sanction has been found -

a) not guilty by the board or a committee of inquiry;
b) guilty by a committee of inquiry, and the estate agent's appeal to the board in terms of section 8C against the decision or penalty is successful or partly successful, the board may, on recommendation of the committee of inquiry concerned (if applicable), make a contribution from the fund, in the amount determined by the board, towards the costs incurred by the estate agent in respect of the hearing before the board or the committee of inquiry (as the case may be) and, if applicable, the appeal heard by the board.
 




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