RULES OF AUCTION
Notice No: # 161
in respect of an auction to be held on the 10 day of March 2011 at 10:44 at and which will be conducted by Andrew Koch of Claremart Auction Group of
49 Somerset Road, Green Point; Telephone: 021 425 8822 / Telefax: 021 425 9212 / E-mail: firstname.lastname@example.org.
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.
2.COMPLIANCE WITH CONSUMER PROTECTION ACT
2.1The auctioneer certifies that, to the best of his knowledge and belief, the rules of auction comply with Section 45 of the CPA.
2.2The auctioneer certifies that, to the best of his knowledge and belief, the rules of auction comply with the regulations.
2.3The 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”.
3.RESERVED PRICE/UPSET PRICE/OWNER OR AGENT’S RIGHT TO BID
Notice is given that the auction is subject to:-
3.1a reserved price or an upset price;
3.2a right on behalf of the Seller to bid at the auction;
3.3a right of the Auctioneer to bid, at the auction on behalf of the Seller, or as proxy for a registered bidder.
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.
5.REGISTRATION/REPRESENTATION OF THIRD PARTIES
5.1Consumers 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
5.2The auctioneer may not accept bids from consumers who are not registered in accordance with these rules of auction.
5.3Consumers wishing to bid at the auction must furnish the auctioneer, prior to the commencement of the auction, with their:-
5.3.1name and identity or passport number;
5.3.2physical address, postal address, telephone number, telefax number, cellular number and e-mail address.
5.4Bidders 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:-
5.4.1an identification document of the bidder; or
5.4.2in the case where the bidder is, for a reason that is acceptable to the auctioneer, unable to produce an identification document:-
126.96.36.199another 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;
188.8.131.52any 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;.
5.4.3a document issued by the South African Revenue Service bearing the income tax number and the name of the bidder;
5.4.4a utility bill or other documentation verifying the residential address of the bidder.
5.5It is in the sole discretion of the auctioneer to determine whether the information which was provided complies with the requirements stipulated in the FICA
5.6A consumer who attends the auction to bid on behalf of another person (the “Principal”) must produce:-
5.6.1a 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;
5.6.2the 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”]
5.7In addition to clause 5.5 above, where a bidder is bidding on behalf of a juristic person:-
5.7.1the 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;
5.7.2the 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.
5.8If 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:-
5.8.1by a natural person;
5.8.2in favour of the Seller and the Auctioneer;
5.8.3binding himself/herself as surety with and on behalf of the Entity;
5.8.4for 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.
5.9Bidders 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.
6.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.
7.CONDITIONS OF SALE
7.1In relation to immovable property, each bid will constitute an offer to the Seller on the terms and conditions contained in the Conditions Immovable.
7.2In 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
7.3The conditions of sale will be available for inspection:-
7.3.1on the Auctioneer’s website and at the Auctioneer’s offices, at least twenty four (24) hours prior to the auction, and;
7.3.2at the auction.
7.4Note that the auctioneer is in law entitled to proceed with the auction, without reading the conditions of sale, if no bidders object.
8.1The 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.
8.2A 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.
8.3The successful bid shall constitute an offer open for acceptance by the Seller, within seven (7) days of completion whereafter the offer will lapse and be of no
further force and effect.
8.4Bidders be aware that the bid amount represents the purchase price only. By way of illustration, the bid amount excludes:-
8.4.1VAT and/or transfer duty and/or Buyers’ Commission (if any one or more of the aforegoing are applicable), and/or;
8.4.2all or any other amount payable by operation of law in order to give effect to the transaction.
8.5If 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. This does not alter the
unsuccessful bidder’s right to claim damages.
8.6The auctioneer may communicate the Seller’s acceptance of the bid:-
8.6.1at the fall of the hammer, or;
8.6.2by SMS or by e-mail within twenty four hours of receipt of the Seller’s acceptance of the bid, or;
8.6.3by 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
In the event that the Seller does not communicate acceptance to the Auctioneer within seven days of completion of the auction, the Seller shall be deemed to have
declined to accept the bid.
9.SALE OF GOODS OR LOT
This clause 9 applies only to the sale of goods or lots which are not immovable property:-
9.1Upon 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. 9.2If 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.
9.3If 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.
9.4If the Purchaser fails to timeously make payment of the purchase consideration, the auctioneer may:-
9.4.1declare 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;
9.4.2sell the subject matter to the second highest bidder at the second highest bid price.
9.5Bidders be aware that in the event of the cancellation of a transaction due to late payment or non-payment of the purchase price:-
9.5.1the 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;
9.5.2the 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;
9.5.3the 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).
10.SALE OF IMMOVABLE PROPERTY
The provisions of this clause 10 apply to the sale of immovable property only:-
10.1Upon 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.
10.2The Purchaser (and where applicable the surety) must furnish the Auctioneer with the signed Conditions Immovable upon completion of the auction.
10.3If the Purchaser fails to furnish the Auctioneer with the signed Conditions Immovable [and suretyship (where applicable)] as provided in clause 10.2 above, the
10.3.1declare the transaction cancelled by SMS notice to the Purchaser to that effect; and
10.3.2sell the immovable property to the second highest bidder.
10.4Bidders 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:-
10.4.1the 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;
10.4.2the 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;
10.4.3the 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)..
In compliance with Regulation 21(2)(l), the auctioneer hereby notifies that the total costs of advertising and conducting the auction is as follows:-
11.1Immovable PropertyIn relation to immovable property:-
11.1.1advertising costs – __VAT inclusive;
11.1.2Auctioneer’s Commission in an amount equal to _% of the purchase consideration;
11.1.3 __VAT on the Auctioneer’s Commission.
11.2Goods and Services In relation to any goods or lot (other than immovable property):-
11.2.1advertising costs – __VAT inclusive;
11.2.2Auctioneer’s Commission in an amount equal to __% of the purchase consideration;
11.2.3Buyer’s Commission in an amount equal to __% of the purchase consideration if applicable;
11.2.4 __% VAT on the Auctioneer’s Commission and Buyer’s Commission.
12.1The Auctioneer has a trust account into which all monies will be paid for the benefit of the Seller, minus the agreed commission.
12.2The auctioneer will, unless the reason for the auction is a voluntary disposal of goods by the owner, announce the reason for the auction.
12.3Bidders’ 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.
12.4In 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.
12.5The rules of auction (and any amended version thereof) will be signed by the auctioneer named hereinabove.
12.6In 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.
12.7Attention is drawn to the fact that the auctioneer may:-
12.7.1not allow bidding on an item or lot which has not been advertised;
12.7.2not deviate from the sequence of the goods as advertised;
12.7.3first offer the goods for sale in a single indivisible transaction and thereafter lot by lot (in the order in which the goods were advertised);
12.8In the circumstances contemplated in clause 12.7.3, the auctioneer must:-
12.8.1compute 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);
12.8.3if the Single Bid is more than the Combined Total, sell the goods as a single indivisible transaction;
12.8.4if the Combined Total is more than the Single Bid, sell the goods, lot by lot.
12.9Consumers 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.
12.10Consumers are required to submit to such reasonable security measures as the Auctioneer may put in place in respect of said inspections.
12.11The auctioneer may not charge a consumer for participating in the auction.
SPECIMEN/PRECEDENT LETTER OF AUTHORITY
In relation to an auction to be conducted by the Claremart Auction Group at 10:44 on the 10 day of March 2011 and to be held at (the “auction”): I/we the undersigned:-
_______________________________________ _________________________(insert full name)
[Registration No./IT No./Identity No./Passport No:-___________________________________]
(hereinafter referred to as the “Principal”)
do hereby authorise and mandate:-
[hereinafter referred to as the “bidder”]
to act as my/our appointed agent to attend the auction on my/our behalf, with authority to:-
1.register as a bidder at the auction, in the capacity as my/our representative;
2.bind me/us to abide by and comply with the rules of auction;
3.bid on my/our behalf;
4.bind me/us as Purchaser in respect of any transaction concluded pursuant to a successful bid by the bidder;
5.sign the Conditions Immovable on my/our behalf (where applicable);
6.generally act as my/our agent with power of attorney to contract at the auction on my/our behalf.
_____________________ (print name) (the bidder)
For and on behalf of the Principal
This sale of the property by public auction is subject to the following conditions of sale (the “Conditions”):
1. The property will be sold by the rise and bids and will be taken in South African currency.
2. The property is sold voetstoots as it now stands. This means that neither the Seller nor the Auctioneer shall be liable for any latent or patent defects therein. Neither the Seller nor the Auctioneer shall be liable to indicate boundaries nor any existing encroachments. The Seller hereby renounces all claims to any excess and will not be answerable for any deficiency in the declared extent thereof.
3. The Purchaser purchases the property subject to:
3.1 Any and every condition and servitude specified in the current and all prior title deeds and diagrams;
3.2 All other rights of and conditions imposed by any statutory authority;
3.3 Its own investigations and due diligence of the property and the purchaser declares that it has satisfied itself in all respects with the condition and state of the property prior to the sale by public auction.
4. The Auctioneer shall resolve any dispute which may arise between bidders at the auction and the Auctioneer's decision shall be final and binding.
5. The Purchaser shall sign the Conditions immediately after the auction.
6. The Purchaser is liable to effect payment of the purchase price by payment of:-
6.1 an initial deposit of __% of the purchase price at the fall of the hammer;
6.2 the Auctioneer’s Commission of __% (excl. VAT) at the fall of the hammer;
6.3 the balance of the purchase price, simultaneously against registration of transfer of the property into the Purchaser’s name.
7. The payments referred to in clauses 6.1 and 6.2 above are payable directly to the Auctioneer, who:-
7.1 shall hold the deposit until transfer, in an interest bearing trust account, with interest to accrue for the benefit of the Purchaser and who shall account to the Seller and the Purchaser in respect of the deposit and accrued interest respectively, on registration of transfer;
7.2 may appropriate the payment in respect of Auctioneer’s Commission immediately upon receipt of the Seller’s notification of acceptance of the Purchaser’s offer (hereinafter referred to as the “effective date”).
8. The balance of the purchase consideration is payable to the Seller’s appointed conveyancers (the “Conveyancers”) simultaneously against registration of transfer of the property into the name of the Purchaser.
9. The Purchaser is liable to effect payment of all amounts payable in terms of these Conditions either by bank guaranteed cheque or by electronic funds transfer, in South African currency and free of exchange and/or bank charges. The Purchaser is obliged to furnish the Seller (c/o the Conveyancers) with a guarantee for payment of the balance of the purchase price against registration of transfer of the property:-
9.1 issued by a registered South African bank and in a form ordinarily issued by South African banks;
9.2 by no later than thirty days after the Auctioneer has given the Purchaser notice of the Seller’s confirmation of the sale;
9.3 regardless of whether or not the Seller is able to pass transfer as at the aforesaid date.
10. The Purchaser may not seek to apply set-off of any of its obligations to the Seller contained in these Conditions unless the:-
10.1 Seller is in breach of these Conditions, and;
10.2 Purchaser has first given the Seller seven (7) days’ prior notice of the Purchaser’s intention to apply set-off which notice must:-
10.2.1 be delivered to the Seller, care of the Conveyancers;
10.2.2 state the amount which the Purchaser wishes to set-off;
10.2.3 state the nature and cause of the indebtedness against which the Purchaser wishes to apply set-off.
11. In the circumstances contemplated in clause 10 above, the Seller may, by written notice to the Purchaser, elect to resile from the transaction, in which event both parties’ rights to claim damages are fully reserved.
12. Registration of transfer of the property shall be effected by the Conveyancers and shall take place as soon as is reasonably possible after the effective date.
13. The Purchaser is obliged to sign, on demand, all documentation required for the purposes of registration of transfer and to pay, on demand, and notwithstanding the fact that the Seller may not then be in a position to pass transfer of ownership, all costs associated with registration of transfer including, but not limited to:-
13.1 transfer duty or VAT (if applicable);
13.2 the Conveyancer’s legal fees associated with registration of transfer calculated in accordance with the prescribed tariff;
13.3 survey charges, if any;
13.4 road construction and sewerage and stormwater drainage installation charges and fees, if any;
13.5 the costs associated with obtaining any electrical and/or beetle and/or any other certificate as to the condition of the property as may be required by the Purchaser;
13.6 all other costs and charges incidental to and necessary in order to effect registration of transfer of the property into the name of the Purchaser.
14. The Seller shall be liable for all rates and taxes and other municipal charges and/or all or any levy and charge that may be payable to any body corporate and/or homeowners’ association (hereinafter referred to as the “Levies”) levied on the property for the period up to the date of registration of transfer, and the Conveyancer is irrevocably authorised to satisfy these from the funds held by the Auctioneer in terms of clause 7 and/or from the purchase price. The Purchaser shall be liable for all Levies levied thereafter. Should any Levies be payable in advance (for the purposes of registration of transfer), the Purchaser shall be liable to pay its pro-rata portion of the Levies (as estimated by the Conveyancers) in the manner and within the time period contemplated in clause 13 above..
15. Possession and occupation of the property, subject to existing leases and tenancies which may exist and/or subject to the legal rights of all or any occupiers of the property, shall be given and taken on registration of transfer, from which date all revenue accruing to, and expenditure, in respect of the said property, shall be for the account of the Purchaser and the property shall thereafter remain solely at the risk and be for the Purchaser’s profit or loss.
16. The Purchaser’s offer, at the fall of the hammer, constitutes an irrevocable offer to the Seller, expiring seven (7) working days after the completion of the auction (“the Expiry Date”). The Seller may accept the offer at any time prior to the Expiry Date by communicating said acceptance to the Auctioneer. The Auctioneer is obliged to notify the Purchaser of the Seller’s acceptance as soon as reasonably possible thereafter, and for this purpose may utilise any of the methods provided for in clause 19 below.
17. Should a higher offer be made to the Seller prior to the Expiry Date, the Seller may not accept said offer unless:-
17.1 the offer was made to the Seller through the Auctioneer, on terms and conditions substantially similar to these Conditions, and;
17.2 the Seller has given the Purchaser an opportunity to meet or beat the higher offer in the manner provided in clause 18 hereunder.
18. In the circumstances contemplated in clause 17 above:-
18.1 the Seller must furnish the Purchaser with a copy of the offer within twenty four hours of receipt by the Seller;
18.2 the Purchaser has the right to equal or better the higher offer (on the terms and conditions herein contained) within twenty four hours of receipt of a copy of the higher offer.
19. The parties hereby choose the respective postal, e-mail and SMS addresses set out in these Conditions, for the delivery of any notices to be served in terms of these Conditions. All or any notice from one party to another in terms of these Conditions may be sent by one or more of the following methods namely by SMS, by e-mail and/or by registered post, (in the latter event the recipient shall be deemed to have received such notification on the fourth business day after posting).
20. In the event of the Purchaser being represented by a trustee on behalf of a company to be formed and:-
20.1 the company is not registered within 30 days from the date of auction, or;
20.2 being registered, fails to furnish the Seller, care of the Auctioneer, with a properly constituted resolution ratifying and adopting this sale with retrospective effect, and/or fails to take transfer of the property for any reason;
the said Trustee shall be deemed to be the Purchaser and he shall be bound personally to take transfer of the property in his name and to fulfil all the obligations of the Purchaser under these Conditions.
21. In the event of the Purchaser being a juristic person, the signatory hereby:-
21.1 warrants that he is duly authorised by such juristic person to enter into this transaction, and;
21.2 agrees to be bound as Purchaser if it should transpire that the juristic person is not bound by these Conditions for any reason whatsoever.
22. The Purchaser shall be entitled, by notice in writing to that effect addressed to the Seller, to nominate a nominee in his/her place as Purchaser, upon the following terms and conditions:
22.1 The aforesaid notice shall be handed to the Seller not later than twenty four hours of the date of confirmation;
22.2 The notice shall set out the name and address of the nominee so nominated as Purchaser;
22.3 The notice shall be accompanied by written acknowledgement that the nominee is fully conversant with and bound by these Conditions;
22.4 Should the Purchaser nominate a nominee in terms of this clause, then:-
22.4.1 all reference to the Purchaser in these Conditions shall be deemed to be a reference to its nominee; and
22.4.2 the Purchaser by its signature hereto, hereby binds himself/herself/itself as surety with, for and on behalf of all the obligations of the aforesaid nominee as Purchaser, to and in favour of the Seller, on the further terms and conditions set out in clause 33 below.
22.5 Should it transpire that the trust, close corporation or company is not liable for any reason to take transfer then in such event the signatory to these conditions of sale will be deemed to be the Purchaser.
23. In the event of the Purchaser failing to make payment of the deposit, VAT or transfer duty, Levies (if applicable), Auctioneer’s Commission and/or all of any other amount payable by the Purchaser to the Seller in terms of these Conditions, on due date or at all:
23.1 the Seller shall be entitled, by notice to the Purchaser, to:-
23.1.1 claim specific performance and such damages as the Seller may have suffered as a consequence of the breach (including consequential damages), or;
23.1.2 cancel the transaction and claim such damages that the Seller may have suffered as a consequence (including any consequential damages suffered by the Seller);
23.2 the Auctioneer shall be entitled, by notice to the Purchaser, to claim payment of the Auctioneer’s Commission.
24. In the event of the Purchaser committing any breach of these Conditions (other than a breach contemplated in Clause 23 above) the Seller shall be entitled but not obliged to give the Purchaser written notice calling upon the Purchaser to remedy said breach within three (3) days of delivery of said notice failing which:-
24.1 the Seller shall be entitled by notice to the Purchaser, to:-
24.1.1 claim specific performance and such damages as the Seller may have suffered as a consequence of the breach (including consequential damages), or;
24.1.2 cancel the transaction and claim such damages that the Seller may have suffered as a consequence (including any consequential damages suffered by the Seller);
24.2 the Auctioneer shall be entitled, by notice to the Purchaser, to claim payment of the Auctioneer’s Commission.
25. In the event of the cancellation of the sale as a consequence of a breach on the part of the Purchaser as provided in clauses 23 and/or 24 above:-
25.1 the Seller shall be entitled to retain all amounts paid by the Purchaser up until date of cancellation on account of its genuinely pre-estimated damages, and;
25.2 if the Seller’s damages exceed the amounts referred to in clause 25.1, the Seller may claim such additional amount from the Purchaser, and;
25.3 if the Seller’s actual damages are less than the amount referred to in clause 25.1, the Purchaser shall be entitled to claim a refund, and;
25.4 the Auctioneer shall be entitled to retain the Auctioneer’s Commission appropriated by the Auctioneer in terms of clause 7.2 above.
26. In the event of the Seller breaching any of the terms of this Agreement:-
26.1 the Purchaser shall be entitled to give the Seller written notice calling upon it to remedy said beach within (5) five days of delivery of said notice failing which the Purchaser shall be entitled to:-
26.1.1 claim specific performance and such damages suffered as a consequence of the Seller’s breach, or;
26.1.2 cancel the Agreement and claim such damages as it may be entitled to claim in law.
26.2 the Auctioneer shall be entitled to retain the Auctioneer’s Commission appropriated by it in terms of clause 7.2 above, and the Purchaser shall be required to recover same from the Seller.
27. In the event of the cancellation of the sale as a consequence of a breach on the part of the Seller as provided in clause 26 above:-
27.1 the Purchaser shall be entitled to claim from the Seller an amount equivalent to all amounts paid by the Purchaser up until date of cancellation, on account of its genuinely pre-estimated damages, and;
27.2 if the Purchaser’s damages exceed the amounts referred to in clause 27.1, claim such additional damages from the Seller.
28. These Conditions contain the whole of the agreement between the parties relating to the conditions of purchase and sale of the property and no amendment, alteration, addition, variation or consensual cancellation hereof will be of any force or effect unless reduced to writing and signed by the parties. The parties agree that no other terms or conditions, whether oral or written, and whether express or implied, apply.
29. No waiver of any of the terms and conditions herein contained will be binding for any purpose unless expressed in writing and signed by the party giving the same, and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either party in exercising any right, power or privilege will operate as a waiver, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
30. In the event of any one or more of the provisions of these Conditions being invalid or unenforceable in law for any reason whatsoever then in that event said invalid provision(s) shall be struck from the Conditions without affecting the validity of the remainder of the Conditions.
31. In the event of any dispute arising from these Conditions being referred to litigation, the successful party shall be entitled to costs of suit on the scale as between attorney and own client limited to a maximum of double the prevailing High Court tariff as amended from time to time.
32. The general rule of construction that the contract shall be interpreted against the party responsible for the drafting or preparation of the agreement, shall not apply.
33. In the event that the Purchaser is a juristic person or any other type of legal persona (other than a natural person) and/or in the circumstances described in clauses 20, 21 and 22 above; the Purchaser’s representative, by his signature hereto, binds himself as surety with the Purchaser for the due fulfilment of the latter’s obligations to the Seller contained in these conditions, and in so doing the surety hereby:-
33.1 renounces the benefits of excussion and division and no value received, the meaning and effect whereof he declares himself to be fully acquainted with;
33.2 undertakes to sign these Conditions (in his capacity as surety) upon demand.