From time to time the question: “For whom does the Conveyancer Act?” comes up for discussion.
In most of the country (except KZN) it is the prerogative of the Seller to appoint the conveyancer. The conveyancer protects the seller’s right of ownership while securing the purchase price, attends to obtaining all clearances and permissions, providing security and undertakings where required, before transferring ownership from the seller to the purchaser by registration in the Deeds Office.
The conveyancer, whether appointed by the seller or the buyer to effect transfer of immovable property, has to implement the contract as it was agreed on, and has a professional duty to safeguard the contractual interests of both the seller and the purchaser.
In the case of Basson v Renini and Another 1992 (2) SA 322 N it was held that the conveyancer acts for both the seller and the purchaser. However, in the case of Manna v Lotter and Another 2007 (4) SA 315 C the converse opinion was held. Similarly, in the Namibian case of Vaatz v Registrar of Deeds, Namibia: In re Nőckel’s Estate 1993 (4) SA 353 (NmHC) it was held that the “conveyancer is nothing but the agent of the person wishing to effect the transfer of his property”.
Judge H R Erasmus, in the unreported case of Johan Willem Bruwer and Another v Pocock and Bailey Incorporated and Another (Case No. H 22/2009), considered the above two judgments and concluded that there rests an onus on conveyancers to ensure that the purchaser’s rights are protected in the conveyancing process. It was further held that conveyancers have a legal responsibility in accordance with the professional code of conduct which the community at large expect from persons holding such capacity, to protect their interests. It was also held that the negligent omission on the part of a conveyancer to protect the interests of a purchaser is unjust (onregmatig).
Chris Fick & Associates
(Borrowed with permission from the article “THE CONVEYANCER’S LEGAL RESPONSIBILITY TO PROTECT THE INTERESTS OF THE PURCHASER AND THE SELLER” by Alan West of Tonkin Clacey)
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