KEEPING YOUR FINGER ON THE PULSE OF THE PROPERTY MARKET

Rules of Auction

LEADING THE INDUSTRY

RULES OF AUCTION

Notice No: # 3945 

in respect of an auction to be held on the 07 th day of April 2017 at 02:00 at Door 201 Mount Royal, 5 York Road, Rosebank and which will be conducted by Andrew Koch or MC du Toit of Claremart Auction Group of 49 Somerset Road, Green Point; Telephone: 021 425 8822 / Telefax: 021 425 9212 / E-mail: info@claremart.co.za.

  1. DEFINITIONS AND INTERPRETATION

Unless expressly stated or the context indicates otherwise, any word or expression to which a meaning has been assigned in the CPA(as defined in clause 1.6) and/or the Regulations (as defined in clause 1.11) shall have the same meaning in these rules of auction.  Without derogating from the preceding sentence, the following words or expressions shall have the following meanings:-

1.1          “advertisement” means the advertisement of the auction in terms of Regulations 19 and 20, a copy whereof can be viewed at the offices of Claremart Auction Group;

1.2          “auction” means the auction to be conducted on the date and at the venue stipulated hereinabove;

1.3          “auctioneer” when used in the lower case, means the auctioneer named hereinabove, acting as the authorised representative of the Auctioneer;

1.4          “Auctioneer” when used in the upper case, means Claremart Auctioneers (Pty) Limited, Registration No. 1997/009112/07, trading as the Claremart Auction Group;

1.5          “bidder” means any person registered to bid at the auction;

1.6          ”CPA” means the Consumer Protection Act 68 of 2008;

1.7          “Conditions Immovable” means the terms and conditions of sale of immovable property published with these rules of auction;

1.8          “Conditions Movable” means the terms and conditions of sale of any goods or lot (other than immovable property) published with these rules of auction;

1.9          “conditions of sale” means a reference to the Conditions Immovable and/or the Conditions Movable, as the case may be;

1.10        “regulations” means, when used in the lower case, all of the regulations promulgated in terms of Section 120(1) of the CPA including but not limited to the regulations published in Notice No. R293 Gazette No. 34180 dated 1 April 2011 and the regulations published in Notice No. R294 Gazette No. 34181 dated 1 April 2011 and all or any further regulations promulgated in terms of the CPA;

1.11        “Regulations” means, when used in the upper case, the regulations published in Notice No. R293 Gazette No.  34180 dated 1 April 2011; 

1.12        “rules of auction” means these rules of auction bearing the notice number stipulated hereinabove;

1.13        “Seller” means the person on whose behalf the goods or lot are being sold by the auctioneer,  and who has signed the declaration contemplated by Regulation 27.

1.14        'SMS' means a short message service provided through a telecommunication system. 

  1. COMPLIANCE WITH CONSUMER PROTECTION ACT

2.1          The auctioneer certifies that, to the best of his knowledge and belief, the rules of auction comply with Section 45 of the CPA.

2.2          The auctioneer certifies that, to the best of his knowledge and belief, the rules of auction comply with the regulations.

2.3          The bidder’s attention is drawn to Section 45(2) of the CPA which reads as follows:-

“When goods are put up for sale by auction in lots, each lot is, unless there is evidence to the contrary, regarded to be the subject of a separate transaction”.

  1. RESERVED PRICE/UPSET PRICE/OWNER OR AGENT’S RIGHT TO BID

Notice is given that the auction is subject to:-

3.1          a reserved price or an upset price;

3.2          a right on behalf of the Seller to bid at the auction;

3.3          a right of the Auctioneer to bid, at the auction on behalf of the Seller, or as proxy for a registered bidder. 

  1. COMMENCEMENT TIME

The auction will commence at the published time and will not be delayed to enable any specific person or persons in general to take part in the auction. 

  1. REGISTRATION/REPRESENTATION OF THIRD PARTIES

5.1          Consumers wishing to participate in the auction must register their identity with the auctioneer prior to the commencement of the auction and as provided in this clause 5.

5.2          The auctioneer may not accept bids from consumers who are not registered in accordance with these rules of auction.

5.3          Consumers wishing to bid at the auction must furnish the auctioneer, prior to the commencement of the auction, with their:-

5.3.1       name and identity or passport number;

5.3.2       physical address, postal address, telephone number, telefax number, cellular number and e-mail address.

5.4          Bidders be aware that the auctioneer is required to verify the bidder’s identification and address details in accordance with Chapter One of the regulations in terms of the Financial Intelligence Centre Act 2001 published in Notice No. R.1595 in Gazette No. 24176 of 20 December 2002 [the “FICA Regulations”]. The FICA Regulations oblige the auctioneer to obtain the following information and documentation:-

5.4.1       an identification document of the bidder; or

5.4.2       in the case where the bidder is, for a reason that is acceptable to the auctioneer, unable to produce an identification document:-

5.4.2.1           another document issued to that bidder, which, taking into account any guidance notes concerning the verification of identities which may apply to  the auctioneer, is acceptable to the auctioneer  and bears:- (aa) a photograph of the bidder;  (bb) the bidder's full names or initials and surname; (cc)  the bidder's date of birth; (dd)  the bidder's identity number, and;

5.4.2.2           any of the above particulars with information which is obtained from any other independent source, if it is believed to be reasonably necessary taking into account any guidance notes concerning the verification of identities which may apply to  the auctioneer;.

5.4.3       a document issued by the South African Revenue Service bearing the income tax number and the name of the bidder;

5.4.4       a utility bill or other documentation verifying the residential address of the bidder.

5.5          It is in the sole discretion of the auctioneer to determine whether the information which was provided complies with the requirements stipulated in the FICA requirements.

5.6          A consumer who attends the auction to bid on behalf of another person (the “Principal”) must produce:-

5.6.1       a letter of authority signed by both the Principal and the bidder in which the Principal expressly authorises the bidder to bid and to conclude a transaction  on behalf of the Principal;

5.6.2       the name and identity number, physical address, postal address,  telephone number, telefax number and e-mail address of the Principal together with verification as required in clause 5.4 above.

                        [A specimen /precedent of such a letter is attached hereto marked “A”]

5.7          In addition to clause 5.5 above, where a bidder  is bidding on behalf of a juristic person:-

5.7.1       the letter of authority must appear on the letterhead of the juristic person and must be accompanied by a certified copy of the resolution authorizing the bidder to bid and sign the conditions of sale on behalf of said juristic person;

5.7.2       the bidder is obliged to bind himself/herself as surety on behalf of the juristic person, and to provide such other security as may be required by the auctioneer for the purposes of providing security for the obligations of the juristic person.

5.8          If the person (or the Principal whom the bidder represents) is not a natural person (referred to hereinafter as the “Entity”) the Auctioneer may refuse to  register the bidder (as representative of the Entity) unless the Entity has furnished the Auctioneer with a suretyship executed:-

5.8.1       by a natural person;

5.8.2      in favour of the Seller and the Auctioneer;

5.8.3       binding himself/herself as surety with and on behalf of the Entity;

5.8.4       for the due fulfillment by the Entity of its obligations to the Seller and the Auctioneer in terms of these rules of auction and in respect of any transaction concluded pursuant to a successful bid. 

5.9          Bidders are required to pay the Auctioneer a refundable registration deposit of R____________ upon registration. Unsuccessful bidders are entitled to the immediate return of the registration deposit upon completion of the auction.

 READING RULES OF AUCTION

Bidders are hereby invited to object to the rules of auction not being read prior to the commencement of the auction.  Note that the auctioneer is in law entitled to proceed with the auction, without reading the rules of auction, if no bidders object.

 CONDITIONS OF SALE

7.1          In relation to immovable property, each bid will constitute an offer to the Seller on the terms and conditions contained in the Conditions Immovable.

7.2          In relation to any other goods or lots (not being immovable property), each bid will constitute an offer to the Seller on the terms and conditions contained in the Conditions Movable.

7.3          The conditions of sale will be available for inspection:-

7.3.1       on the Auctioneer’s website and at the Auctioneer’s offices, at least twenty four (24) hours prior to the auction, and;

7.3.2       at the auction.

7.4          Note that the auctioneer is in law entitled to proceed with the auction, without reading the conditions of sale, if no bidders object.

 BIDDING

8.1          The Auctioneer will regulate the bidding at all times and is entitled to withdraw or reject any bid at his own discretion.  The Auctioneers decision is final and binding

8.2          If there is a dispute between two or more bidders as to who put in the highest bid, the auctioneer’s record of the highest bid stands. 

8.3          The auctioneer will provide registered bidders with a bidder number and a paddle or other device to which that number is attached in a way that it is clearly visible to persons present at the auction.

8.4          A sale by auction in respect of goods or a lot (as the case may be) is complete when the auctioneer announces its completion by the fall of the hammer.

8.5          The successful bid shall constitute an offer  open for acceptance by the Seller, within seven (7) working days of completion whereafter the offer will lapse and be of no further force and effect. 

8.6          Bidders be aware that the bid amount represents the purchase price only. By way of illustration, the bid amount excludes:-

8.6.1       VAT and/or transfer duty and/or Buyers’ Commission (if any one or more of the aforegoing are applicable), and/or;

8.6.2       all or any other amount payable by operation of law in order to give effect to the transaction. 

8.7          The auctioneer may communicate the Seller’s acceptance of the bid:-

8.7.1       at the fall of the hammer, or;

8.7.2       by SMS or by e-mail within twenty four hours of receipt of the Seller’s acceptance of the bid, or;

8.7.3       by posting such notice by pre-paid registered post to the bidder’s address (or, if applicable, to the bidder’s principal’s address within three days of receipt of communication of the Seller’s acceptance of the bid), in which event the bidder shall be deemed to have received such notification on the fourth business day after posting.

In the event that the Seller does not communicate acceptance to the Auctioneer within seven (7) working days of completion of the auction, the Seller shall be deemed to have declined to accept the bid.

SALE OF GOODS OR LOT 

This clause 9 applies only to the sale of goods or lots which are not immovable property:-

9.1          Upon acceptance of the highest bid by the Seller, there shall come into effect an agreement of sale between the Seller and the bidder (or where the bidder represents a third party, the person whom the bidder represents) on the terms and conditions contained in the Conditions Movable.  In these rules of auction, the term “Purchaser” means the highest bidder (or where the bidder represents a third party, the person whom the bidder represents) provided that the Seller has accepted the bid.   

9.2          If the Seller’s acceptance of the offer is communicated to the Purchaser at the auction, the Purchaser is obliged to make payment of the purchase price within one hour of the conclusion of the auction.

9.3          If the Seller’s acceptance of the offer is communicated to the Purchaser after the auction, the Purchaser is obliged to make payment of the purchase price within twenty four hours of receipt of such communication.

9.4          If the Purchaser fails to timeously make payment of the purchase consideration, the auctioneer may:-

9.4.1       declare the transaction cancelled and furnish notice to the Purchaser in any one of the methods provided for in clauses 8.6.2 or 8.6.3;

9.4.2       sell the subject matter to the second highest bidder at the second highest bid price.

9.5          Bidders be aware that in the event of the cancellation of a transaction due to late payment or non-payment of the purchase price:-

9.5.1       the Auctioneer stands to suffer damages and loss in the form of  the loss of advertising costs, Auctioneer’s Commission and, where applicable, loss of Buyers’ Commission as set out in clause 11.2 hereunder, and;

9.5.2       the Seller stands to suffer damages and loss, including but not limited to the potential liability to pay the Auctioneer the damages and loss referred to in clause 9.5.1. above, the difference between the highest bid price and the price at which the goods or lot may ultimately be sold and such further common law damages which the Seller may be able to prove to have suffered;

9.5.3       the bidder and/or the Purchaser may be held liable to the Seller and the Auctioneer in respect of the aforementioned damages subject to the limitations contained in Regulations 24 (d), (e) & (f).

  1. SALE OF IMMOVABLE PROPERTY

The provisions of this clause 10 apply to the sale of immovable property only:-

10.1        Upon acceptance of the highest bid by the Seller, there shall come into effect an agreement of sale between the Seller and the bidder (or where the bidder represents a third party, the person whom the bidder represents) on the terms and conditions contained in the Conditions Immovable.

10.2        The Purchaser (and where applicable the surety) must furnish the Auctioneer with the signed Conditions Immovable upon completion of the auction.

10.3        If the Purchaser fails to furnish the Auctioneer with the signed Conditions Immovable [and suretyship (where applicable)] as provided in clause 10.2 above, the Auctioneer may:-

10.3.1    declare the transaction cancelled by SMS notice to the Purchaser to that effect; and

10.3.2    sell the immovable property to the second highest bidder.

10.4        Bidders be aware that in the event of the cancellation of a transaction due to non-delivery or late delivery of the signed Conditions Immovable as provided in clause 10.3 above:-

10.4.1    the Auctioneer stands to suffer damages and loss in the form of loss of Auctioneer’s Commission as set out in clause 11.1 hereunder, and;

10.4.2    the Seller stands to suffer damages and loss including but not limited to the potential liability to pay the auctioneer the damages and loss referred to in clause 10.4.1 above, the difference between the highest bid price and the price at which the immovable property is ultimately sold and such further common law damages which the Seller be able to prove to have suffered, and;

10.4.3    the bidder and/or the Purchaser may be held liable to the Seller and the Auctioneer in respect of the aforementioned damages subject to the limitations contained in Regulation 24 (d), (e) & (f)..

  1. AUCTION COSTS

In compliance with Regulation 21(2)(l), the auctioneer hereby notifies that the total costs of advertising and conducting the auction is as follows:-

11.1        Immovable Property

In relation to immovable property:-

11.1.1    advertising costs – As per Schedule and Budget;

11.1.2    Auctioneer’s Commission in an amount equal to 10% of the purchase consideration;

11.1.3     14% VAT on the Auctioneer’s Commission.

11.2        Goods and Services In relation to any goods or lot (other than immovable property):-

11.2.1    advertising costs – R…………, VAT inclusive;

11.2.2    Auctioneer’s Commission in an amount equal to ………%  of the purchase consideration;

11.2.3    Buyer’s Commission in an amount equal to ………% of the purchase consideration if applicable;

11.2.4     14% VAT on the Auctioneer’s Commission and Buyer’s Commission.

  1. GENERAL

12.1        The Auctioneer has a trust account into which all monies will be paid for the benefit of the Seller, minus the agreed commission.

12.2        The auctioneer will, unless the reason for the auction is a voluntary disposal of goods by the owner, announce the reason for the auction.

12.3        Bidders’ records (as contemplated in Regulation 26) and the vendor roll [as contemplated in Regulation 28(4)] shall be available for inspection at the Auctioneer’s offices during normal hours, without the charge of a fee.

12.4        In the event that these rules of auction are amended at any time after advertisement, the auctioneer will expressly indicate that the new version/replacing version is the amended version.

12.5        The rules of auction (and any amended version thereof) will be signed by the auctioneer named hereinabove.

12.6        In the event that the auctioneer is unavailable to conduct the auction, the Auctioneer may appoint an alternative auctioneer to conduct the auction, which alternative auctioneer will be deemed to have so certified the rules of auction.

12.7        Attention is drawn to the fact that the auctioneer may:-

12.7.1    not allow bidding on an item or lot which has not been advertised;

12.7.2    not deviate from the sequence of the goods as advertised;

12.7.3    first offer the goods for sale in a single indivisible transaction and thereafter lot by lot (in the order in which the goods were advertised);

12.8        In the circumstances contemplated in clause 12.7.3, the auctioneer must:-

12.8.1    compute the sum total of the goods sold (the Combined Total);

12.8.2compare this total to the amount bid for the goods as a single divisible transaction (the Single Bid);

12.8.3    if the Single Bid is more than the Combined Total, sell the goods as a single indivisible transaction;

12.8.4    if the Combined Total is more than the Single Bid, sell the goods, lot by lot.

12.9        Consumers are free to inspect the goods on offer on the day preceding the auction alternatively on the date specified in the advertisement and no fee will be charged in respect of such inspection.

12.10      Consumers are required to submit to such reasonable security measures as the Auctioneer may put in place in respect of said inspections.

12.11      The auctioneer may not charge a consumer for participating in the auction.