WHO IS THE CONVEYANCER´S CLIENT?

 

TO ALL ESTEEMED BUSINESS PARTNERS

Number

30/2016
For many years uncertainty prevailed as to whether the conveyancer, appointed by the seller to effect transfer of immovable property, has any duty to safeguard the interest of 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 Vaalz v Registrar of Deeds, Namibia : In re Nöckel´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. H22/2009), considered the above two judgements and concluded that there rests an onus on conveyancers to ensure that the purchasers 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).

Conclusion

Regardless, of who appoints the conveyancer, the conveyancer owes a duty of care to both parties and must represent both parties fairly, unless a dispute arises in which case the transferring attorney will be allowed to act on behalf of the party who nominated him. It remains open for parties to negotiate the appointment of the transferring attorney and include a clause to such effect in the contract of sale as good grounds may exist which supports the purchaser being entitled to appoint the transferring attorney.


For any queries please contact our property law division at the details below:

Allen West
Tel: 012 425 3549
awest@macrobert.co.za

Daleen Loubser
Tel: 012 425 3489
dloubser@macrobert.co.za

Disclaimer: This newsflash is for general information only and should not be used as legal or professional advice. No liability can be accepted for any errors or omissions, nor for any loss or damage arising from reliance and any information therein