Maryna holds the BA, LLB, LLM degrees and is a Director at the Cape Town offices of STBB. She is an admitted Attorney, Notary Public and Conveyancer with many years of experience in the field of property law and conveyancing. She is also the firm's Marketing Director and attends to external publications for the firm as well as conducts ongoing training for estate agent and bankers training and is a regular seminar presenter for attorneys and property practitioners.

Property Practitioners Act | Instalment 10

How the authority will deal with complaints against you

In case you missed our previous instalments.
Instalment #1
Instalment #2
Instalment #3
Instalment #4
Instalment #5
Instalment #6
Instalment #7
Instalment #8
Instalment #9

This is #10 in our short series of instalments on all the new things to bear in mind with the coming into operation of the Property Practitioners Act on 1 February 2022.

In this instalment we familiarise you with the process that has been put in place for dealing with complaints raised against estate agents by the man in the street (or other property practitioners).

ANY PERSON MAY LODGE A COMPLAINT WITH THE AUTHORITY

Section 28 of the Act provides for the lodging of complaints by any person, and in respect of financing, marketing, management, letting, hiring, sale or purchase of property.

A prescribed form is contained in regulation 5 for the lodging of the complaint. The form has spaces where full details of the complaint must be indicated, and the claimant must also disclose the identity and details of the estate agent or other practitioner involved.

On receipt, the Authority may immediately investigate the matter or may request further information.

The Authority must, on receipt of the formal complaint, acknowledge receipt thereof, and provide the practitioner against whom the claim is brought (‘the respondent’), with a copy of the complaint. The respondent is then invited to respond thereto, in writing and within the prescribed period.

RESOLVING THE COMPLAINT

The Authority will, after its own investigation:

  • deal with the matter itself;
  • refer the matter for (voluntary and free) mediation; or
  • decide to refer it to adjudication. This is likely to be the case when the complaint is of a serious nature, for example when it constitutes ‘sanctionable conduct’ or an ‘undesirable business practice’. (See instalment #3 in the series.)

MEDIATION

Section 29 provides that the Authority may, if it believes that a complaint can be resolved through mediation, or on application of the person concerned, refer the complaint to mediation. The Authority must thereafter, within seven days of the referral, appoint a suitably qualified person as a mediator, who must within seven days set the matter down within 30 days of referral to mediation, and will assist the parties to resolve the dispute.

  • If the mediation is successful, the mediator will issue a certificate stating the outcome and a copy must be served on the complainant and respondent. On the other hand, if it was unsuccessful, the matter must be adjudicated in accordance with the adjudication process offered by the Authority.

ADJUDICATION

Section 30 deals with the adjudication process. This will be triggered when (i) a matter was not resolved during the mediation; or (i) where the serious nature of the complaint and the contravention in question warrants adjudication.

The Authority must appoint an independent legally qualified person as an adjudicator. It may also appoint assessors to assist the Adjudicator in respect of any complaint, and depending on the complexity.

Once the process is completed, the adjudicator must make a determination. If the complaint is upheld, the adjudicator must make an appropriate order. Such an order will have the status of an order of the Magistrates’ Court. and must be executed accordingly. The order may include a fine.

COMPLAINTS AMONGST PROPERTY PRACTITIONERS

The Act provides that the Authority’s mediation and adjudication processes may also be used by property practitioners (not only consumers generally) in respect of complaints against other property practitioners. In such an event, the services of the Authority is not free (as in the case where it is a consumer bringing the action) and the parties will be required to contribute to the costs of the mediation and adjudication.

For questions and assistance, contact us on info@stbb.co.za

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