Picking up on remarks made by Mr Thami Bolani, the new Chairman of the Estate Agency Affairs Board, who recently held a meeting with heads of estate agencies in Cape Town, Bill Rawson, Chairman of Rawson Properties, said that in the residential property sector most of those who have studied the new Consumer Protection Act agree with Bonani that it very definitely lacks clarity and is difficult to interpret.

“At another seminar in Cape Town recently Professor Henk Delport of the University of Port Elizabeth said that the new act is one of the worst drafted sets of legislation he has ever come across,” said Rawson.  “I myself find that much of it is ambiguous and open to different interpretations.”

The new act, said Rawson, is likely to lead to costly legal challenges over the next three years.  These may (or may not) result in it being far better defined and in helping estate agents to understand just how far reaching it is and what steps they should take to protect themselves from comebacks.  At the moment, however, he said, there is a great deal of confusion on these matters.

“In our group, as in other big estate agencies,” he said, “we have taken legal counsel on the new act.  At this stage only three facts are really clear.  These are:

•that all our agreements and legal documents will have to be simple, clear and easily understood;
•that the voetstoots clause could now become obsolete and other wording to protect sellers from latent undetected faults will have to be found; and
•that the customer’s level of education and ability to understand will have to be assessed and, if there are doubts here, a great deal of trouble will have to be taken to work through the documents, getting the customer to sign that this has been done and that he has understood them.  Even this, however, may well not be binding if it transpires later that the customer did not understand or if he claims that he, perhaps as an exit route from the contract, thought he understood but in fact did not.

“All in all this is, therefore, a contentious and very complicated piece of legislation which only a series of court actions will help us to understand fully.”