Property Practitioners Act, 2019 (Act No. 22 of 2019)

Regulations

Property Practitioners Regulations, 2022

Chapter 8 : Administrative and other matters

41. Administrative Matters

Schedule 1 - Administrative matters relating to Exemptions
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Manner and Form of Application

 

41.1 For the purposes of section 4 of the Property Practitioners Act, 22 of 2019 ("Act"), the following is prescribed—
41.1.1 An application for exemption under section 4 of the Act must be submitted in writing to the Authority either by email or by hand delivery to the offices of the Authority as set out further below.
41.1.2 The application for exemption must be made using form E1 below.
41.1.3 Any objection to an exemption must be made using form E2 below.

 

Process Pertaining to Exemptions

 

41.2 Where application has been made for exemption in respect of any matter contemplated in the Act, no action will be taken against the applicant in relation to non-compliance with the matter in relation to which exemption is sought, until such exemption application has been finalised in accordance with the process set out in this Schedule 1. If such any exemption application is refused, notice of such refusal together with the reasons therefor must be given to the applicant and the applicant must be given a reasonable period of time within which to bring about compliance with the matter which is the subject of such exemption application in which regard the Authority must, if it requires such compliance, issue a compliance notice as contemplated in section 26. The aforegoing shall only apply where the exemption application precedes the action taken. It shall in no way affect any action that had already been mounted or proceedings against the applicant that are already underway on the date on which the application was lodged.

 

41.3 An application for exemption must be either uploaded through the Authority's web portal or otherwise must be sent by the applicant to the Authority's email address at [insert email address] or otherwise sent by post or delivered by hand to the following address of the Authority—

 

Property Practitioners Regulatory Authority

63 Wierda Road East (Cnr Johan)

Wierda Valley

Sandton

Johannesburg

2196

 

41.4 The Authority must, within 60 working days, consider any application for exemption submitted to it which is compliant with the provisions of this regulation, unless the Authority, on good grounds in writing, informs the applicant of the reasons why that period is to be extended, provided that such extension may not exceed 20 working days.

 

41.5 The period of 60 working days referred to in regulation 41.4 foregoing commences afresh if the Authority requests the applicant to submit additional information or to correct said application.

 

41.6 If the Authority fails to comply with regulation 41.4 foregoing, the application is deemed to have been approved and the Authority may not take any action against the applicant in relation to non-compliance with the matter which has been the subject of such exemption application, for so long as the exemption remains of force and effect.

 

41.7 An application for exemption may be made by any person or organisation, whether such person or organisation is a property practitioner or not. Without limiting the foregoing, an application for exemption may be made by a representative organisation or association on behalf of its members or membership.

 

Administration of Exemption Applications

 

41.8 As a matter of practice, exemptions should be granted in circumstances where none of the considerations in section 4 (5) (a), (b), (c) or (e) arises and, having regard to any considerations as referred to in section 4 (5) (d), such exemption will not have a material adverse effect upon consumers' rights.

 

41.9 As a matter of practice, exemptions from the provisions of section 58(1)(b) should be granted (a) in circumstances where it can be shown on a balance of probabilities that such will be to the benefit of consumers or members of the public or (b) otherwise in circumstances where good and sufficient cause exists for such exemption.

 

41.10 Where natural persons apply for exemption from either or both provisions of section 50(a)(vii) and 50(a)(x), such exemptions should ordinarily be granted. Applications for exemption from the provisions of 50 (a) (vii) and 50 (a) (x) may be submitted simultaneously with any application for registration as a property practitioner, for a fidelity fund certificate or for renewal of a fidelity fund certificate.

 

41.11 In considering whether an exemption should be granted, regard should be had to the administrative burden on the Authority of not granting such exemption.

 

41.12 In considering any exemption application, due regard should be had to the legitimate expectations of the applicant, regard being had to previous practice in regard to exemption applications of the kind in question.

 

41.13 An exemption application may be submitted simultaneously with an application for registration as a property practitioner or with an application for a fidelity fund certificate and, in such event, such application must be dealt with simultaneously if the granting of such registration or the issue of such fidelity fund certificate is or may reasonably be considered to be, contingent upon the exemption application being granted.

 

41.14 Any person who applies for registration or a fidelity fund certificate may be exempted from the obligation to pay any prescribed fees pertaining thereto or otherwise be permitted by the Authority to discharge such fees over such period of time as the Authority may consider reasonable in the circumstances if either (a) such applicant provides the Authority with reasonable proof of financial hardship or (b) the interests of justice so require.

 

41.15 Where a party that applies for exemption acts solely as a conduit or platform for the placing of advertisements by property practitioners, such exemption should in the absence of other considerations relating to protecting the interests of consumers, be granted.

 

41.16 Where it is alleged that a property practitioner that is a business property practitioner has a partner, director, trustee or member that does not hold a fidelity fund certificate as required in terms of section 48(2), written confirmation from the auditors or attorneys of the business property practitioner concerned that such partner, director, trustee or member (the "non-compliant executive member") has subsequently been removed, has resigned or has withdrawn from such position will be proof of such fact, provided that it is accompanied by an affidavit by a partner, director trustee or member of the business property practitioner concerned as follows—

 

I, [insert name] with identity number [insert details] [alternatively, insert passport number and details of the issuing country], being a [insert capacity] of [insert the full name of the business property practitioner concerned] (with registration number [insert details]) [delete the reference to the registration number if the property practitioner in question does not have a registration number], do hereby state and make oath/affirm that [insert the full name of the non-compliant executive member] (with identity number [insert details]) [alternatively, insert passport number and details of the issuing country], has as of [insert date] ceased to act as a [insert the relevant capacity] of [insert the full name of the business property practitioner concerned] or to have any involvement with the management of or the direction of the affairs of [insert the full name of the business property practitioner concerned].

 

41.17 Where a property practitioner that is a business property practitioner has non-executive directors or has finance, marketing, information technology or human resource directors or any other director who is not directly concerned with the management and oversight of individual property practitioners, exemption should ordinarily be granted from the provisions of section 48(1)(b) and 48(2) in respect of such persons, upon application being made to the Authority.

 

41.18 Where an exemption application has or is likely to have an effect on significant numbers of property practitioners, the Authority must consult with industry bodies representing property practitioners before considering and finalising such exemption application.

 

41.19 Other than for sole proprietors, all property practitioners who are natural persons will, upon making application for a Fidelity Fund certificate, be deemed by the fact of such application itself to have applied for exemption from the provisions section 50 (vii) of the Act and the Authority must by default grant such exemption.

 

41.20 All property practitioners who are natural persons will, upon making application for a Fidelity Fund certificate, be deemed by the fact of such application itself to have applied for exemption from the provisions of section 50 (x) of the Act and the Authority must by default grant such exemption.

 

41.21 For the purposes of sub regulations 41.19 and 41.20 foregoing and regardless of what is provided for elsewhere in these Regulations (including this Schedule 1), it shall not be necessary for any property practitioner who is deemed to have applied for exemption under the provisions of such sub-regulations, to make any formal application for such exemption, the fact of the application for a Fidelity Fund in and of itself being deemed to comprise such application for exemption.

 

 

 

FORM E1– APPLICATION FOR EXEMPTION FROM PROVISIONS OF THE PROPERTY

PRACTITIONERS ACT, 2019

 

Full names of the applicant:

 

If the applicant is a natural person:

South African identity number of the applicant:

If no South African identity number is available, then:

Passport number of the applicant:

Country of issue of passport:

State the place of residence of the applicant:

State the principal place of business of the applicant, if applicable:

State the name of the employer of the applicant, if applicable:

 

 

 

 

 

 

 

If the applicant is not a natural person:

State the form of the applicant (e.g. company, close corporation, trust, association):

State the registration number of the applicant, if applicable:

State the place of registration of the applicant, if applicable:

State the principal place of business of the applicant, if applicable:

Provide full details of the directors, members, trustees or similar persons exercising control over the applicant (attached separately, if necessary):

 

 

Please also provide full details of shareholders, members, beneficiaries or other persons who have a direct financial interest in the applicant (attached separately, if necessary):

 

 

 

 

 

 

 

Briefly state the reason exemption is applied for (full reasons may be attached separately):

 

 

 

 

 

 

If the applicant is or has at any time been the holder of a fidelity fund certificate issued by the Authority or its predecessor in title the Estate Agency Affairs Board, attach a copy of the most recent version of the fidelity fund certificate held by the applicant.

 

Please separately attach comprehensive reasons as to why exemption is being applied for and also provide all relevant supporting documentation.

 

State the specific sections and subsections of the Property Practitioners Act, 2019 from which exemption is sought:

 

 

 

 

 

 

If the applicant is not a natural person, also attach an authorising resolution by the board of

 

State the period for which exemption is sought:

 

 

 

 

 

 

directors, members or trustees or similar body exercising control of the applicant which authorises the signatory below to submit the exemption application on behalf of the applicant.

 

Signed at                                on this                                 day of                                       20            at

 

 

__________________________________

For and on behalf of the applicant

Full names:

 

 

 

FORM E2 FORM E1– OBJECTION TO EXEMPTION GRANTED UNDER THE PROVISIONS OF THE

PROPERTY PRACTITIONERS ACT, 2019

 

Full names of the objecting party:

 

If the objecting party is a natural person:

South African identity number of the objecting party:

If no South African identity number is available, then:

Passport number of the objecting party:

Country of issue of objecting party:

State the place of residence of the objecting party:

State the principal place of business of the objecting party, if applicable:

State the name of the employer of the objecting party, if applicable:

 

 

 

 

 

 

 

If the objecting party is not a natural person:

State the form of the objecting party (e.g. company, close corporation, trust, association):

State the registration number of the objecting party, if applicable:

State the place of registration of the objecting party, if applicable:

State the principal place of business of the objecting party, if applicable:

Provide full details of the directors, members, trustees or similar persons exercising control over the objecting party (attached separately, if necessary):

 

 

Please also provide full details of shareholders, members, beneficiaries or other persons who have a direct financial interest in the objecting party (attached separately, if necessary):

 

 

 

 

 

 

 

Briefly state the basis of the objection (full reasons may be attached separately):

 

 

 

 

 

 

State the specific sections and subsections of the Property Practitioners Act, 2019 in respect of which exemption has been granted and to which objection is made:

 

 

 

 

 

 

If the objecting party is or has at any time been the holder of a fidelity fund certificate issued by the Authority or its predecessor in title the Estate Agency Affairs Board, attach a copy of the most recent version of the fidelity fund certificate held by the objecting party.

 

Please separately attach comprehensive reasons as to why exemption is objected to and also provide all relevant supporting documentation.

 

If the objecting party is not a natural person, also attach an authorising resolution by the board of directors, members or trustees or similar body exercising control of the applicant which authorises the signatory below to submit the objection on behalf of the objecting party.

 

Signed at                                on this                                 day of                                       20            at

 

 

__________________________________

For and on behalf of the objecting party

Full names: