Does Seller or Buyer in a property transaction nominate the Conveyancing Attorney in Kzn ?

Does Seller or Buyer in a property transaction nominate the Conveyancing Attorney in Kzn ?

Seller’s Right to Nominate Transferring Attorney in KwaZulu-Natal, South Africa

In KwaZulu-Natal (KZN), South Africa, the seller’s right to nominate the transferring attorney (conveyancer) in a property sale is a well-established legal principle rooted in common law and supported by statutory provisions. Below is an overview of the relevant legal framework, including the Property Practitioners Act 22 of 2019 and the Deeds Registries Act 47 of 1937.

Common Law Basis

The seller’s right to appoint the transferring attorney originates from the 1903 case, James v Liquidators of The Amsterdam Township Company (1903 TS 866). This case established that when a person is legally obligated to fulfill a contract, such as transferring property ownership, they have the right to appoint their own agent to carry out the obligation. In property transactions, the seller authorizes the conveyancer via a power of attorney to prepare and execute the transfer documents, thereby granting them the prerogative to choose the transferring attorney.
Deeds Registries Act 47 of 1937

The Deeds Registries Act 47 of 1937 governs the registration and transfer of immovable property in South Africa, including KZN. Specifically:
Section 20 of the Act stipulates that the transfer of ownership of immovable property must be effected by a Deed of Transfer signed by the owner (the seller) or their duly authorized agent. This provision implicitly supports the seller’s right to nominate the conveyancer, as the seller grants the power of attorney to the chosen attorney to act on their behalf in the transfer process.

The Act ensures that the transfer process, including the preparation and lodging of documents at the Deeds Office (in KZN, typically the Pietermaritzburg Deeds Office), is conducted by a qualified conveyancer appointed by the seller, unless otherwise agreed.

Property Practitioners Act 22 of 2019

The Property Practitioners Act 22 of 2019 regulates the conduct of property practitioners, including estate agents, and is relevant to the conveyancing process in KZN. Key provisions include:
Section 28 prohibits property practitioners from engaging in unfair conduct, such as unduly influencing the seller’s choice of transferring attorney. This ensures that the seller’s right to nominate their preferred conveyancer is protected and not swayed by external pressures, such as estate agents pushing for attorneys who offer them commissions.

The Act promotes transparency and fairness, requiring estate agents to act in the best interests of their clients (both buyers and sellers) while respecting the seller’s common law right to appoint the conveyancer.

Practical Application in KZN
In KZN, the seller typically nominates the transferring attorney responsible for drafting the Deed of Transfer, preparing related documents, and lodging them with the Pietermaritzburg Deeds Office. However, the seller and buyer can mutually agree to appoint a different conveyancer, such as one preferred by the buyer, provided the seller consents. This flexibility is common in practice but does not override the seller’s default right to choose.

The conveyancing process in KZN follows national standards, with no unique provincial legislation altering the seller’s right. The appointed conveyancer must be registered with the Legal Practice Council and admitted as a conveyancer under the Legal Practice Act 28 of 2014.

Conclusion

The seller’s right to nominate the transferring attorney in KZN is firmly established under common law, as reinforced by the James v Liquidators precedent, and supported by Section 20 of the Deeds Registries Act 47 of 1937, which governs the transfer of property ownership. The Property Practitioners Act 22 of 2019 further protects this right by preventing undue influence from estate agents, ensuring the seller’s autonomy in the conveyancing process. While negotiations between parties may lead to alternative arrangements, the seller’s prerogative remains the default position in KZN property transactions.

Leon – The Pinetown Property Sales Specialist
083 506 8938
www.pinetownproperties.co.za
www.leonloggenberg.co.za