| (1) |
Every property practitioner— |
| (a) |
must open and keep one or more separate trust accounts, which must contain a reference to this section, with a bank registered in terms of the Banks Act, 1990, (Act No. 94 of 1990); |
| (b) |
must immediately after opening a trust account contemplated in paragraph (a) appoint an auditor as prescribed; |
| (c) |
must immediately after opening a trust account as contemplated in paragraph (a) and appointing an auditor as contemplated in paragraph (b), provide the Authority as prescribed with all information in respect of such account or accounts and such auditor; and |
| (d) |
or his, her or its responsible or designated employee, as the case may be, must immediately deposit all trust money held or received by or on behalf of that property practitioner in the relevant trust account. |
| (2) |
Despite subsection (1), any property practitioner may invest in a separate savings or other interest-bearing account opened by him, her or it with any bank any monies deposited in his, her or its trust account which are not immediately required for any particular purpose, provided that— |
| (a) |
savings or other interest-bearing accounts must contain a reference to this subsection; and |
| (b) |
property practitioner must as prescribed provide the Authority with all information in respect of such account. |
| (3) |
A property practitioner must retain all trust money deposited in terms of subsection (1) or invested in terms of subsection (2), until he, she or it— |
| (a) |
is lawfully entitled to such money; or |
| (b) |
is lawfully instructed in writing to make payment therefrom to any person. |
| (4) |
Any bank which manages trust accounts for purposes of this Act must, from time to time as prescribed, submit a certificate to the Authority declaring interest in respect of that account. |
| (5) |
Every property practitioner must— |
| (a) |
keep separate accounting records of all monies deposited by him, her or it in his, her or its trust account and of all monies invested by him, her or it in any savings or other interest-bearing accounts contemplated in subsection (2); |
| (b) |
balance his, her or its books and records relating to any account contemplated in paragraph (a) at intervals of not more than one month, and cause them as well as all his, her or its business accounts or any other account into which monies are deposited in connection with any property transaction to be audited by the same auditor contemplated in subsection (1)(b), within six months after the final date of the financial year of the property practitioner concerned; and |
| (c) |
administer the accounts referred to in subsections (1) and (2) in the prescribed manner. |
| (6) |
A property practitioner must, forthwith after receipt of an audit report contemplated in subsection (5)(b), submit that report to the Authority, but a property practitioner who submits that report later, may upon payment of a prescribed penalty make a late submission of that report. |
| (7) |
Despite subsection (5), the Authority may on good cause at any time order a property practitioner by notice in writing to submit to the Authority within a period stated in such notice, but not less than 30 days, an audited statement prepared by an auditor fully setting out the state of affairs in respect of the matters referred to in subsection (5)(b). |
| (8) |
A court may on good cause, upon application by the Authority or any other competent person, prohibit any property practitioner from operating in any way his, her or its trust, savings or other interest-bearing accounts contemplated in subsection (2) and may appoint a curator bonis to control and administer such trust, savings or other interest-bearing accounts, with the rights, duties and powers that the court deems fit. |
| (a) |
the Authority refuses under the provisions of this Act to issue a Fidelity Fund certificate to any property practitioner who applied for a Fidelity Fund certificate; |
| (b) |
a Fidelity Fund certificate issued to any property practitioner has been withdrawn or lapsed without being renewed; |
| (c) |
any property practitioner ceases to act as such; or |
| (d) |
any property practitioner becomes subject to any disqualification contemplated in section 50, |
the property practitioner concerned must immediately wind up his, her or its trust account, savings account or other interest-bearing account in the prescribed manner and pay out in the prescribed manner the amount standing to the credit of any such account to the persons entitled to it.
| (10) |
Any property practitioner who winds up an account as contemplated in subsection (10) which contains unclaimed or unidentifiable money, or who has held monies in his, her or its trust account of which the owner or beneficiary could for longer than three years not be identified, must pay that money into the Fund to be held in trust, but the Fund must, upon application in the prescribed manner by the owner or beneficiary of such money and with the provision of sufficient proof, pay that money to that owner or beneficiary. |
| (11) |
Any money paid into the Fund in accordance with subsection (11) which has remained unclaimed by the person entitled thereto for a period of 30 years as from the date upon which such person became entitled to claim that money, is forfeited to the Fund. |
| (12) |
Despite any other law, the amount standing to the credit of the trust, savings or other interest-bearing account contemplated in subsections (1) and (2) of a property practitioner, does not under any circumstances form part of the assets of such property practitioner or, if he or she was a natural person and has died or has become insolvent, of his or her deceased or insolvent estate. |
| (13) |
Despite any other law, no trust money which may have been paid into any account other than an account contemplated in subsection (1) or (2), whether erroneously or not, under any circumstances becomes part of any such account, and does not lose its nature or characteristics as a result of being paid into such other account. |
| (14) |
A property practitioner must annually confirm or update the details of his, her or its auditor as prescribed. |
Diamonds Act, 1986
