Property Practitioners Bill signed into law – now what?
MAIN IMAGE: Jean-Maré Oosthuizen, General Manager for the Rawson Property Group; Cynthia Machaba, principal and director for CynMac Properties
The Property Practitioners Bill has finally been signed into law by the President. What happens now?
On Wednesday 2 October two pieces of legislation were signed into law by president Cyril Ramaphosa that directly impact the property industry to a lesser and greater degree respectively.
One is the Electronic Deeds Registration Systems Bill which will see the development of an electronic deeds registration system (also known as e-DRS) which is expected improve the turn-around time for providing deeds and documents to clients.
The other is the much anticipated and oft debated Property Practitioners Bill which will replace the 43-year old Estate Agency Affairs Act of 1976. The new bill is expected to help fast-track the slow-moving transformation of the property sector and is aimed at improving the regulation of the property market, yet has raised a lot of concerns with industry body Rebosa as well as other role players in the industry. Some of these concerns have been addressed during the public participation process prior to the tabling of the bill but there are many that weren’t resolved. The Department of Human Settlements did indicate that the regulations governing how the new bill will be implemented will address some of the pending issues.
Signed into law – the next step?
So, what does it mean now that the bills have been signed into law? Do things start to change immediately – to name but one change, according to the Property Practitioners Bill the Estate Agency Affairs Board is to be replaced as regulatory body by the Property Practitioners Regulatory Authority. When will this happen?
According to legal advice provided to Rebosa there’s no need to panic as nothing will happen until a formal declaration has been made through the Government Gazette that the new law is enacted. S77 of what is now the Property Practitioners Act provides that “This Act is called the Property Practitioners Act, 2018, and comes into operation on a date fixed by the President by proclamation in the Gazette“. The Act will therefore not become law before such promulgation occurs in the Government Gazette.
Rebosa has been advised that from a practical perspective, before the Act can be implemented, the relevant regulations need to be prepared, in the absence of which, it is not possible to properly implement the Act. As at this point in time, no draft regulations have yet been published. It therefore seems unlikely that the Act will become law during the course of 2019. Further, it is noted that in some cases, legislation has been signed but years after the fact have still not come into operation.
“Much as the Bill was promoted as the silver bullet to affect transformation, I’m afraid some of the promoters will be disappointed. Real transformation challenges have not been addressed and the Bill creates as many challenges as it was supposed to address. Unfortunately, contrary to the department’s belief, the acknowledged problems and inconsistencies in the Bill cannot be addressed by regulations alone. Rebosa is, however, fully prepared to comment on draft regulations when published. Industry will be kept informed,” says Jan le Roux, chief executive of Rebosa.
In response to the news of the Bill being signed into law, the following comments were also received from industry role players.
Jeanne-Maré Oosthuizen, General Manager for the Rawson Property Group:
Despite industry, through our representative body Rebosa, going to great lengths to constructively contribute and offer alternatives to ensure that the best interest of the property industry were taken into account during the drafting and reviewing of the legislation that governs the operation of our industry, it has now been signed into law, and unfortunately, the application and implementation of some very critical aspects of this legislation will be impractical, and near impossible in some cases. There could also be a very real constitutional challenge, if the regulations do not clarify the interpretation of some parts of the Act.
We are, however, now looking forward to being involved in the drafting of the regulations to clarify key operational aspects of this Act, specifically as it relates to its very wide definitions and onerous expectations on agencies. We are hoping that the powers that be give industry more consideration in the finalization of these regulations.
Cynthia Machaba, principal and director CynMac Properties:
Just like any other change in life, this bill is going to require us practitioners to make some adjustments to be able to work and comply with it. The unfortunate part is that some of the concerns raised by property practitioners seem to have fallen on deaf ears. When you want to hold someone accountable, you need to give them the powers to control situations, if you fail to do that, you are bound to create a chaotic environment.
It is understandable that the real estate agent should not influence the decisions on which service provider the client must use. But in the same vein, property practitioners should be extensively trained professionals who know and understand the market inside out. That means that, without disadvantaging or exploiting clients, they should be in a position to advise, and provide a full package service to the client.
Like any other legislation, it will require amendments and improvements going forward. What us as property practitioners can do is to adjust and make sure we are never on the wrong side of the law.
Do you welcome and/or have concerns about the new act – what would you like to see addressed before the new Property Practitioners Act is implemented? Email your comments to firstname.lastname@example.org.