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The increasing importance of Fidelity Fund Certificates

Property Practitioners who now need to hold a Fidelity Fund Certificate, unless excluded, to practice in terms of the Property Practitioners Act, 22 of 2019, may have certain questions regarding the application process to obtain the Certificate, its issuing from the Authority and any disqualifications from issuing, its amendment, withdrawal, and lapse thereof.

A Property Practitioner needs to apply for a Fidelity Fund certificate every three years to the Authority within the prescribed period and accompanied with the prescribed fee. The ‘Authority’ relates to the Property Practitioners Regulatory Authority, established in section 5 of the Property Practitioners Act, 22 of 2019 (hereafter the “Act”) and a juristic person accountable to the Minister. When the Authority receives the application together with the prescribed fees, the Authority will issue the Fidelity Fund Certificate if the Property Practitioner meets all the requirements as specified by the Act or is not disqualified from being issued a Fidelity Fund Certificate. The Certificate will be issued in the prescribed form and valid until the 31st of December of each year.

Some of the parties who are disqualified from receiving issued Fidelity Fund Certificates are the following:

  1. Any person who is not a South African citizen and does not reside within the Republic.
  2. Any person who has been found guilty of the Property Practitioners Act, the repealed Estate Agency Affairs Act, or any legislation similar within five years at any time.
  3. Any person who is of unsound mind.
  4. Any person who has been dismissed from a position of trust at any time preceding five years.

When holding a Fidelity Fund Certificate, there could be times when the Authority may need to amend it. In writing, the Authority may inform the holder of the Fidelity Fund Certificate of its intention to amend the Certificate or any part thereof. The proposed amendment needs to be accompanied by reasons from the Authority, and the holder of the Certificate may respond to the proposed amendment(s) within a prescribed period.

When an amended Fidelity Fund Certificate is issued to the Property Practitioner, the Authority needs to accompany the amended Certificate any reasons for the amendment; supply any replies to the holder of the Certificate’s responses, and request the return of the original Fidelity Fund Certificate immediately. The date on which the Authority serves the amended Fidelity Fund Certificate on the Property Practitioner is the date which it comes into operation. If the Property Practitioner delays or prevents the Authority in any way to deliver or serve the amended Fidelity Fund Certificate, the amended Certificate will come into operation on the date which the Authority attempted to serve the Certificate on the Property Practitioner.

Any holder of a Certificate in terms of the Act is mandated to display the Fidelity Fund Certificate at all times; it is prominently featured in the place of business where property transactions are conducted so that consumers can inspect it without effort. Holders of the Certificate also need to ensure that any communication through marketing material and letterheads must be clear and legible. Lastly, a holder of the Certificate needs to ensure that the necessary clause is inserted in all relevant documents, ensuring that the Certificate is valid. Any relevant person who contravenes the above-mentioned rules will be guilty of an offence as per section 52(2) of the Act.

Holders of the Certificate should note that it can be withdrawn or lapse in certain circumstances. In terms of withdrawal of the Certificate, if the Authority is instructed by a court of law or any adjudicator, or by its initiative decide to withdraw a Fidelity Fund Certificate – it is allowed to do so in terms of certain provisions laid out in section 52(1) of the Act. Section 52(4) of the Act stipulates circumstances when the Certificate will lapse, such as the date of death of the certificate holder. When the Fidelity Fund Certificate is withdrawn or lapses in terms of section 52, the person who has the Certificate in their possession needs to return the Certificate to the Authority. If it is not possible, the relevant person will need to make a declaration under oath to state why the Certificate will not be returned.

Reference:

  • Property Practitioners Act, 22 of 2019.

 

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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Jan Fourie

Director |  Attorney, Notary & Conveyancer | BA. LLB

Jan graduated in 1974 with a five-year BA LLB degree from the University of Stellenbosch, whereafter he was admitted as an advocate and prosecuted as such in the Cape Town and Wynberg Courts. In 1974, he joined Swemmer & Levin as the Candidate Attorney of Mr Levin (founding member) and was admitted as an attorney on 7 April 1976, as a conveyancer on 11 January 1978, and as a Notary on 19 December 1984. Since 1974, he has served in various committees, including the West Coast Chamber of Commerce, the Vredenburg School Committee, and the Malgas Lions Club. 

Furthermore, Jan was the author of the first bilingual law book, The New Debt Collecting Procedures (Die Nuwe Skuldinvorderingsprosedures), which was used by all the Magistrate Courts throughout South Africa. With the founding of the Small Claims Court in Vredenburg, Jan served as one of the first Commissioners. He is currently based at Swemmer & Levin’s Vredenburg office and has been with our firm for more than 47 years.

Pieter Smit

Director | Attorney & Conveyancer | BA. LLB

Pieter obtained his BA Law degree from Stellenbosch University in 1995 and his LLB degree from the North-West University in Potchefstroom in 1998. He served his articles at Marais Muller Attorneys from 1998 to 1999 and was admitted as an attorney in 2000 and as a conveyancer in 2002. Pieter is the founder of PP Smit Attorneys, which opened its doors in 2004. He also became a director of Swemmer & Levin in 2006. Pieter loves the outdoors and participating in all forms of sport, including tennis, golf, fishing, spearfishing, scuba diving, and hiking. 

Johann Maree

Director | Attorney | BA. LLB

Johann matriculated at Oudtshoorn High School and attended Stellenbosch University, where he obtained his BA Law and LLB degrees. Following his studies, he worked for three years as State Prosecutor at the Magistrate’s Court in Cape Town. Johann completed his legal training with the State Attorney in Pretoria and then moved to his hometown, Oudtshoorn, where he worked as a lawyer for a year. In 1983, he finally moved to Vredenburg and joined Swemmer & Levin, where he is still practising as a director. When he is not in the office, Johann enjoys cycling and in his earlier days, he used to be a long-distance junkie.

Richard Phillips

Director | Attorney | Bcom & BProc

After matriculating at Paarl Boys’ High School, Richard completed his BCom and BProc degrees at the University of Port Elizabeth. He served his articles with Van Wyk Fouchee in Paarl and quickly developed an affinity for litigation. Richard has always had a deep love for the ocean and when he was presented with an opportunity to join Swemmer & Levin on the West Coast, he agreed without hesitation and has been with our firm since 1997. Richard specialises in general litigation and divorces. When he is not in the office or with his family, he tries to spend as much time as possible in or on the water.

Jandré Smith

Director | Attorney | LLB

Jandré grew up and matriculated in the small Klein Karoo town of Oudtshoorn. He furthered his studies at the North-West University in Potchefstroom, obtaining his LLB degree during 2015. He completed his articles at Swemmer & Levin in 2017 and was subsequently appointed as a professional assistant. In 2020, Jandré was promoted to the position of director at the firm, where he practises in the Litigation department at our Langebaan office. When not practising law, Jandré is an avid sports fan. He has a passion for nature and enjoys camping, trail running, and mountain biking with his family.

Andre van der Walt

Director | Attorney | LLB

Andre graduated in 2015 with an LLB degree from the University of Pretoria. He later went on to obtain his NQF 7 Certificate in the Administration of Deceased Estates from the University of South Africa, which allowed him to further his career in deceased estates and the drafting of wills and trusts. Andre served his articles at Barnard & Patel Attorneys under the supervision of Mr YAS Patel. After being admitted as an attorney in 2016, he continued working at Barnard & Patel Attorneys as a professional assistant in the deceased estates department.

Andre joined Van Rensburg Attorneys in 2019 and was head of the deceased estates department until 2021. He then received the opportunity to move to the West Coast, where he joined Swemmer & Levin Attorneys. Andre loves travelling and enjoys the beauty that our country has to offer with his friends, family, and loved ones.

Harmann Potgieter

Attorney | LLB

Harmann graduated in 2018 with an LLB degree from the North-West University’s Potchefstroom Campus. He went on to study and grow in various fields, including doing a course on the Consumer Protection Act and a course at the University of South Africa where he obtained his NQF 7 Certificate in the Administration of Deceased Estates.

Harmann completed his articles of clerkship at Swemmer & Levin under the supervision of Mr Richard Phillips. After being admitted as an attorney in 2020, Harmann continued with Swemmer & Levin as a professional assistant in the deceased estates department as well as the litigation department. He loves to study, possesses a deep curiosity about the world, and is dedicated to giving back to the community.

 

Carla Cloete

 

Director | Attorney, Conveyancer & Notary | LLB  

Carla obtained her LLB at the North West University, Potchefstroom Campus in 2015. She completed her articles in 2017 with Brits Dreyer Inc in Bellville. She is an admitted Attorney, Notary and Conveyancer. After her articles she relocated to Kimberley where she worked as a professional assistant in the Conveyancing department of Van de Wall Inc. Coming back to her Western Cape roots, she now joins the Swemmer & Levin team as a professional assistant.