Sandy Walsh, head of training for the Western Cape branch of the Institute of Estate Agents, has followed up on statements made recently by Prof Henk Delport at a well attended morning conference organised by the Institute recently.
Prof Delport, describing certain sectors of the new Consumer Protection Act, as “highly ambiguous and bound to lead to a number of court cases in which the legislation will have to be interpreted”, said that many of the practices now prohibited had in fact been illegal under other laws for many years.
Thus, for example, the use of misleading or deceptive statements, innuendo or exaggeration – all outlawed by the CPA – have always been against the law and are simply redefined here.
However, said Walsh, like Prof Delport, she and her colleagues at the Institute have a problem with the clauses which state that a failure to correct an apparent misapprehension by the consumer could also invalidate the sale.
“How does an agent ascertain that he has been fully and comprehensively understood?” asked Walsh. “He or she can go through the agreement clause by clause, but this is no guarantee that it has been totally absorbed.”
Similarly, said Walsh, the agent is told by the Act not to take advantage of the physical or mental inability of any client or their illiteracy, their ignorance or their difficulties with the language.
“A clever lawyer could use these clauses to get any contract revoked,” said Walsh. “Our Institute’s code of ethics has always put the onus on the agent to ensure that all parties understand the agreement – but how can an agent prove that we achieved this if later the client claims ignorance? Even if he did understand, the customer could deny it later to further his own interests.”
Walsh said that “as always” the ensuing court cases will in time clarify these matters but, like Prof Delport, she fears that for a few years there will be much ongoing debate before clarity is reached.
Institute of Estate Agents Western Cape Press Release