Rules of Auction
RULES OF AUCTION
Notice No:# 1054
in respect of an auction to be held on the 27 day of June 2012 at 12:30 at WELTEVREDEN RD , PHILIPPI, WESTERN CAPE and which will be conducted by Andrew Koch of Claremart Auction Group of
49 Somerset Road, Green Point; Telephone: 021 425 8822 / Telefax: 021 425 9212 / E-mail: info@claremart.co.za.
1.DEFINITIONS AND INTERPRETATION
Unless expressly stated or the context indicates otherwise, any word or expression to which a meaning has been assigned in the CPA(as defined in clause 1.6) and/or the
Regulations (as defined in clause 1.11) shall have the same meaning in these rules of auction. Without derogating from the preceding sentence, the following words or
expressions shall have the following meanings:-
1.1“advertisement” means the advertisement of the auction in terms of Regulations 19 and 20, a copy whereof can be viewed at the offices of Claremart Auction Group;
1.2“auction” means the auction to be conducted on the date and at the venue stipulated hereinabove;
1.3“auctioneer” when used in the lower case, means the auctioneer named hereinabove, acting as the authorised representative of the Auctioneer;
1.4“Auctioneer” when used in the upper case, means Claremart Auctioneers (Pty) Limited, Registration No. 1997/009112/07, trading as the Claremart Auction Group;
1.5“bidder” means any person registered to bid at the auction;
1.6”CPA” means the Consumer Protection Act 68 of 2008;
1.7“Conditions Immovable” means the terms and conditions of sale of immovable property published with these rules of auction;
1.8“Conditions Movable” means the terms and conditions of sale of any goods or lot (other than immovable property) published with these rules of auction;
1.9“conditions of sale” means a reference to the Conditions Immovable and/or the Conditions Movable, as the case may be;
1.10“regulations” means, when used in the lower case, all of the regulations promulgated in terms of Section 120(1) of the CPA including but not limited to the
regulations published in Notice No. R293 Gazette No. 34180 dated 1 April 2011 and the regulations published in Notice No. R294 Gazette No. 34181 dated 1 April 2011 and
all or any further regulations promulgated in terms of the CPA;
1.11“Regulations” means, when used in the upper case, the regulations published in Notice No. R293 Gazette No. 34180 dated 1 April 2011;
1.12“rules of auction” means these rules of auction bearing the notice number stipulated hereinabove;
1.13“Seller” means the person on whose behalf the goods or lot are being sold by the auctioneer, and who has signed the declaration contemplated by Regulation 27.
1.14'SMS' means a short message service provided through a telecommunication system.
2.COMPLIANCE WITH CONSUMER PROTECTION ACT
2.1The auctioneer certifies that, to the best of his knowledge and belief, the rules of auction comply with Section 45 of the CPA.
2.2The auctioneer certifies that, to the best of his knowledge and belief, the rules of auction comply with the regulations.
2.3The bidder’s attention is drawn to Section 45(2) of the CPA which reads as follows:-
“When goods are put up for sale by auction in lots, each lot is, unless there is evidence to the contrary, regarded to be the subject of a separate transaction”.
3.RESERVED PRICE/UPSET PRICE/OWNER OR AGENT’S RIGHT TO BID
Notice is given that the auction is subject to:-
3.1a reserved price or an upset price;
3.2a right on behalf of the Seller to bid at the auction;
3.3a right of the Auctioneer to bid, at the auction on behalf of the Seller, or as proxy for a registered bidder.
4.COMMENCEMENT TIME
The auction will commence at the published time and will not be delayed to enable any specific person or persons in general to take part in the auction.
5.REGISTRATION/REPRESENTATION OF THIRD PARTIES
5.1Consumers wishing to participate in the auction must register their identity with the auctioneer prior to the commencement of the auction and as provided in this
clause 5.
5.2The auctioneer may not accept bids from consumers who are not registered in accordance with these rules of auction.
5.3Consumers wishing to bid at the auction must furnish the auctioneer, prior to the commencement of the auction, with their:-
5.3.1name and identity or passport number;
5.3.2physical address, postal address, telephone number, telefax number, cellular number and e-mail address.
5.4Bidders be aware that the auctioneer is required to verify the bidder’s identification and address details in accordance with Chapter One of the regulations in
terms of the Financial Intelligence Centre Act 2001 published in Notice No. R.1595 in Gazette No. 24176 of 20 December 2002 [the “FICA Regulations”]. The FICA
Regulations oblige the auctioneer to obtain the following information and documentation:-
5.4.1an identification document of the bidder; or
5.4.2in the case where the bidder is, for a reason that is acceptable to the auctioneer, unable to produce an identification document:-
5.4.2.1another document issued to that bidder, which, taking into account any guidance notes concerning the verification of identities which may apply to the
auctioneer, is acceptable to the auctioneer and bears:- (aa) a photograph of the bidder; (bb) the bidder's full names or initials and surname; (cc) the bidder's
date of birth; (dd) the bidder's identity number, and;
5.4.2.2any of the above particulars with information which is obtained from any other independent source, if it is believed to be reasonably necessary taking into
account any guidance notes concerning the verification of identities which may apply to the auctioneer;.
5.4.3a document issued by the South African Revenue Service bearing the income tax number and the name of the bidder;
5.4.4a utility bill or other documentation verifying the residential address of the bidder.
5.5It is in the sole discretion of the auctioneer to determine whether the information which was provided complies with the requirements stipulated in the FICA
requirements.
5.6A consumer who attends the auction to bid on behalf of another person (the “Principal”) must produce:-
5.6.1a letter of authority signed by both the Principal and the bidder in which the Principal expressly authorises the bidder to bid and to conclude a transaction on
behalf of the Principal;
5.6.2the name and identity number, physical address, postal address, telephone number, telefax number and e-mail address of the Principal together with verification
as required in clause 5.4 above. [A specimen /precedent of such a letter is attached hereto marked “A”]
5.7In addition to clause 5.5 above, where a bidder is bidding on behalf of a juristic person:-
5.7.1the letter of authority must appear on the letterhead of the juristic person and must be accompanied by a certified copy of the resolution authorizing the bidder
to bid and sign the conditions of sale on behalf of said juristic person;
5.7.2the bidder is obliged to bind himself/herself as surety on behalf of the juristic person, and to provide such other security as may be required by the auctioneer
for the purposes of providing security for the obligations of the juristic person.
5.8If the person (or the Principal whom the bidder represents) is not a natural person (referred to hereinafter as the “Entity”) the Auctioneer may refuse to register
the bidder (as representative of the Entity) unless the Entity has furnished the Auctioneer with a suretyship executed:-
5.8.1by a natural person;
5.8.2in favour of the Seller and the Auctioneer;
5.8.3binding himself/herself as surety with and on behalf of the Entity;
5.8.4for the due fulfillment by the Entity of its obligations to the Seller and the Auctioneer in terms of these rules of auction and in respect of any transaction
concluded pursuant to a successful bid.
5.9Bidders are required to pay the Auctioneer a refundable registration deposit of R____________ upon registration. Unsuccessful bidders are entitled to the immediate
return of the registration deposit upon completion of the auction.
6.READING RULES OF AUCTION
Bidders are hereby invited to object to the rules of auction not being read prior to the commencement of the auction. Note that the auctioneer is in law entitled to
proceed with the auction, without reading the rules of auction, if no bidders object.
7.CONDITIONS OF SALE
7.1In relation to immovable property, each bid will constitute an offer to the Seller on the terms and conditions contained in the Conditions Immovable.
7.2In relation to any other goods or lots (not being immovable property), each bid will constitute an offer to the Seller on the terms and conditions contained in the
Conditions Movable.
7.3The conditions of sale will be available for inspection:-
7.3.1on the Auctioneer’s website and at the Auctioneer’s offices, at least twenty four (24) hours prior to the auction, and;
7.3.2at the auction.
7.4Note that the auctioneer is in law entitled to proceed with the auction, without reading the conditions of sale, if no bidders object.
8.BIDDING
8.1The auctioneer will provide registered bidders with a bidder number and a paddle or other device to which that number is attached in a way that it is clearly
visible to persons present at the auction.
8.2A sale by auction in respect of goods or a lot (as the case may be) is complete when the auctioneer announces its completion by the fall of the hammer.
8.3The successful bid shall constitute an offer open for acceptance by the Seller, within seven (7) days of completion whereafter the offer will lapse and be of no
further force and effect.
8.4Bidders be aware that the bid amount represents the purchase price only. By way of illustration, the bid amount excludes:-
8.4.1VAT and/or transfer duty and/or Buyers’ Commission (if any one or more of the aforegoing are applicable), and/or;
8.4.2all or any other amount payable by operation of law in order to give effect to the transaction.
8.5If there is a dispute between two or more bidders as to who put in the highest bid, the auctioneer’s record of the highest bid stands. This does not alter the
unsuccessful bidder’s right to claim damages.
8.6The auctioneer may communicate the Seller’s acceptance of the bid:-
8.6.1at the fall of the hammer, or;
8.6.2by SMS or by e-mail within twenty four hours of receipt of the Seller’s acceptance of the bid, or;
8.6.3by posting such notice by pre-paid registered post to the bidder’s address (or, if applicable, to the bidder’s principal’s address within three days of receipt of
communication of the Seller’s acceptance of the bid), in which event the bidder shall be deemed to have received such notification on the fourth business day after
posting.
In the event that the Seller does not communicate acceptance to the Auctioneer within seven days of completion of the auction, the Seller shall be deemed to have
declined to accept the bid.
9.SALE OF GOODS OR LOT
This clause 9 applies only to the sale of goods or lots which are not immovable property:-
9.1Upon acceptance of the highest bid by the Seller, there shall come into effect an agreement of sale between the Seller and the bidder (or where the bidder
represents a third party, the person whom the bidder represents) on the terms and conditions contained in the Conditions Movable. In these rules of auction, the term
“Purchaser” means the highest bidder (or where the bidder represents a third party, the person whom the bidder represents) provided that the Seller has accepted the
bid. 9.2If the Seller’s acceptance of the offer is communicated to the Purchaser at the auction, the Purchaser is obliged to make payment of the purchase price within one
hour of the conclusion of the auction.
9.3If the Seller’s acceptance of the offer is communicated to the Purchaser after the auction, the Purchaser is obliged to make payment of the purchase price within
twenty four hours of receipt of such communication.
9.4If the Purchaser fails to timeously make payment of the purchase consideration, the auctioneer may:-
9.4.1declare the transaction cancelled and furnish notice to the Purchaser in any one of the methods provided for in clauses 8.6.2 or 8.6.3;
9.4.2sell the subject matter to the second highest bidder at the second highest bid price.
9.5Bidders be aware that in the event of the cancellation of a transaction due to late payment or non-payment of the purchase price:-
9.5.1the Auctioneer stands to suffer damages and loss in the form of the loss of advertising costs, Auctioneer’s Commission and, where applicable, loss of Buyers’
Commission as set out in clause 11.2 hereunder, and;
9.5.2the Seller stands to suffer damages and loss, including but not limited to the potential liability to pay the Auctioneer the damages and loss referred to in
clause 9.5.1. above, the difference between the highest bid price and the price at which the goods or lot may ultimately be sold and such further common law damages
which the Seller may be able to prove to have suffered;
9.5.3the bidder and/or the Purchaser may be held liable to the Seller and the Auctioneer in respect of the aforementioned damages subject to the limitations contained
in Regulations 24 (d), (e) & (f).
10.SALE OF IMMOVABLE PROPERTY
The provisions of this clause 10 apply to the sale of immovable property only:-
10.1Upon acceptance of the highest bid by the Seller, there shall come into effect an agreement of sale between the Seller and the bidder (or where the bidder
represents a third party, the person whom the bidder represents) on the terms and conditions contained in the Conditions Immovable.
10.2The Purchaser (and where applicable the surety) must furnish the Auctioneer with the signed Conditions Immovable upon completion of the auction.
10.3If the Purchaser fails to furnish the Auctioneer with the signed Conditions Immovable [and suretyship (where applicable)] as provided in clause 10.2 above, the
Auctioneer may:-
10.3.1declare the transaction cancelled by SMS notice to the Purchaser to that effect; and
10.3.2sell the immovable property to the second highest bidder.
10.4Bidders be aware that in the event of the cancellation of a transaction due to non-delivery or late delivery of the signed Conditions Immovable as provided in
clause 10.3 above:-
10.4.1the Auctioneer stands to suffer damages and loss in the form of loss of Auctioneer’s Commission as set out in clause 11.1 hereunder, and;
10.4.2the Seller stands to suffer damages and loss including but not limited to the potential liability to pay the auctioneer the damages and loss referred to in
clause 10.4.1 above, the difference between the highest bid price and the price at which the immovable property is ultimately sold and such further common law damages
which the Seller be able to prove to have suffered, and;
10.4.3the bidder and/or the Purchaser may be held liable to the Seller and the Auctioneer in respect of the aforementioned damages subject to the limitations contained
in Regulation 24 (d), (e) & (f)..
11.AUCTION COSTS
In compliance with Regulation 21(2)(l), the auctioneer hereby notifies that the total costs of advertising and conducting the auction is as follows:-
11.1Immovable PropertyIn relation to immovable property:-
11.1.1advertising costs – R17 100, VAT inclusive;
11.1.2Auctioneer’s Commission in an amount equal to 15% of the purchase consideration;
11.1.3 14% VAT on the Auctioneer’s Commission.
11.2Goods and Services In relation to any goods or lot (other than immovable property):-
11.2.1advertising costs – R17 000, VAT inclusive;
11.2.2Auctioneer’s Commission in an amount equal to 10% of the purchase consideration;
11.2.3Buyer’s Commission in an amount equal to 10% of the purchase consideration if applicable;
11.2.4 14% VAT on the Auctioneer’s Commission and Buyer’s Commission.
12.GENERAL
12.1The Auctioneer has a trust account into which all monies will be paid for the benefit of the Seller, minus the agreed commission.
12.2The auctioneer will, unless the reason for the auction is a voluntary disposal of goods by the owner, announce the reason for the auction.
12.3Bidders’ records (as contemplated in Regulation 26) and the vendor roll [as contemplated in Regulation 28(4)] shall be available for inspection at the Auctioneer’s
offices during normal hours, without the charge of a fee.
12.4In the event that these rules of auction are amended at any time after advertisement, the auctioneer will expressly indicate that the new version/replacing version
is the amended version.
12.5The rules of auction (and any amended version thereof) will be signed by the auctioneer named hereinabove.
12.6In the event that the auctioneer is unavailable to conduct the auction, the Auctioneer may appoint an alternative auctioneer to conduct the auction, which
alternative auctioneer will be deemed to have so certified the rules of auction.
12.7Attention is drawn to the fact that the auctioneer may:-
12.7.1not allow bidding on an item or lot which has not been advertised;
12.7.2not deviate from the sequence of the goods as advertised;
12.7.3first offer the goods for sale in a single indivisible transaction and thereafter lot by lot (in the order in which the goods were advertised);
12.8In the circumstances contemplated in clause 12.7.3, the auctioneer must:-
12.8.1compute the sum total of the goods sold (the Combined Total);
12.8.2compare this total to the amount bid for the goods as a single divisible transaction (the Single Bid);
12.8.3if the Single Bid is more than the Combined Total, sell the goods as a single indivisible transaction;
12.8.4if the Combined Total is more than the Single Bid, sell the goods, lot by lot.
12.9Consumers are free to inspect the goods on offer on the day preceding the auction alternatively on the date specified in the advertisement and no fee will be
charged in respect of such inspection.
12.10Consumers are required to submit to such reasonable security measures as the Auctioneer may put in place in respect of said inspections.
12.11The auctioneer may not charge a consumer for participating in the auction.
ANNEXURE “A”
SPECIMEN/PRECEDENT LETTER OF AUTHORITY
In relation to an auction to be conducted by the Claremart Auction Group at 12:30 on the 27 day of June 2012 and to be held at WELTEVREDEN RD , PHILIPPI, WESTERN CAPE (the “auction”): I/we the undersigned:-
_______________________________________ _________________________(insert full name)
[Registration No./IT No./Identity No./Passport No:-___________________________________]
of _________________________________________________________________________________
___________________________________________________________________________________
(hereinafter referred to as the “Principal”)
do hereby authorise and mandate:-
________________________________________(Identity No.:-___________________________)
[hereinafter referred to as the “bidder”]
to act as my/our appointed agent to attend the auction on my/our behalf, with authority to:-
1.register as a bidder at the auction, in the capacity as my/our representative;
2.bind me/us to abide by and comply with the rules of auction;
3.bid on my/our behalf;
4.bind me/us as Purchaser in respect of any transaction concluded pursuant to a successful bid by the bidder;
5.sign the Conditions Immovable on my/our behalf (where applicable);
6.generally act as my/our agent with power of attorney to contract at the auction on my/our behalf.
____________________________
_____________________________
_____________________ (print name) (the bidder)
For and on behalf of the Principal
