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

Regulations

Property Practitioners Regulations, 2022

Chapter 3 : Compliance, Enforcement and Dispute Resolution

9. Procedure for Adjudication

Purchase

Charge

9.1	The Authority may only bring a charge to be heard by an adjudicator if—

9.1.1

it is of the reasonable opinion that there is sufficient evidence to substantiate a complaint and there is a reasonable likelihood that an adjudicator will find that the complaint, if proved, constitutes sanctionable conduct; or

9.1.2

the respondent to the complaint has failed to observe the terms of a compliance notice issued in terms of section 26 (4).

9.2	A charge shall be in writing, be dated and shall—

9.2.1

contain the name and address of both the complainant and the respondent;

9.2.2

contain an exposition of the sanctionable conduct with which the respondent is charged;

9.2.3

be accompanied by—

9.2.3.1

a summary of the procedure applicable to the adjudication; and

9.2.3.2

a copy of the complaint on which the charge is based, if such copy has not already been furnished to the respondent;

9.2.3.3

copies of all documents which are at that point in the possession of the Authority and which the Authority intends to submit in evidence at the adjudication; and

9.2.3.4

any other documents or information in the possession or under the control of the Authority which tend to prove or disprove the charges against the respondent;

9.2.4

invite the respondent to furnish the Authority with an affidavit setting out his or her comments on the charge, if any, within 30 days;

9.2.5

notify the respondent that he or she is under no obligation to respond or to make any comments, and that any such comments may and shall be used as evidence against him or her at an adjudication; and

9.2.6

notify the respondent that should he or she admit the charge within the period stated in subregulation 9.2.4, he or she—

9.2.6.1

will not be required to appear at an adjudication; and

9.2.6.2

in the case of admitting the charge, may within the period mentioned in subregulation 9.2.4 furnish the Authority with a written statement setting forth any mitigating circumstances.

9.3	The Authority may at any time and on good cause withdraw a charge and. shall forthwith thereafter in writing notify the complainant and the respondent of its decision and the reason therefor.

9.4	A charge contemplated in regulation 9.1 and any notification referred to in regulation 9.3 shall be delivered to the respondent personally or be sent to him or her by prepaid registered post at his or her business or residential address on record at the Authority.

Acknowledgement of Guilt

9.5	If a respondent admits the charge as contemplated in subregulation 9.2.6, the Authority shall deliver to an adjudicator a copy of the charge and the statements, if any, referred to in subregulation 9.2.4.

9.6	The adjudicator shall consider the charge and the respondent's statements, if any, and if it is satisfied that the conduct complained of constitutes sanctionable conduct and that the respondent is found guilty of such conduct, it shall—

9.6.1

find the respondent guilty on such charge; and

9.6.2

make an appropriate order, having due regard to the respondent's statement referred to in subregulation 9.2.6.2, if any.

9.7	The Authority shall in writing notify the complainant and the respondent of the adjudicator's decision referred to in regulation 9.6.

Authority's powers and duties in respect of adjudication

9.8	The Authority—

9.8.1

may appoint any appropriately qualified person, or designate any appropriately qualified staff member of the Authority, to perform the specific functions entrusted to a prosecutor in terms of the adjudication proceedings;

9.8.2

shall cause such adjudication proceedings to be recorded. Summoning of respondent and witness

Summoning of respondent and witness

9.9	The Authority—

9.10	shall, if the respondent does not admit the charge as contemplated in subregulation 9.2.6, summon the respondent to appear before an adjudicator at a time and place specified in a notice of adjudication; and

9.11	may summon any witness of its own accord, or at the instance of the adjudicator or the respondent, to be present at the adjudication in order to give evidence.

9.12	A summons referred to in regulation 9.10 shall be in the form specified in Annexure A, and a summons referred to in regulation 9.11 shall be in the form specified in Annexure B.

9.13	A summons referred to in regulation 9.9 shall be served on the respondent or a witness, as the case may be, by—

9.13.1

delivering it to him or her personally; or

9.13.2

sending it to him or her by prepaid registered post at his or her business or residential address last known to the Authority; or

9.13.3

delivering it at his or her place of employment, business or residential address to any person over the age of 16 years that resides or is employed at such address.

9.14	The Authority shall reimburse a witness who is present at an adjudication at the instance of the Authority or an adjudicator the expenses as the Authority may from time to time determine generally, or in any particular case.

9.15

The Authority may require the respondent to first deposit a reasonable sum of money sufficient to cover the costs of preparing and service of the summons for any witness who is summoned by the Authority at the instance of the respondent and any surplus amount shall be repaid without interest to the respondent.

Plea of guilty before adjudication is held

9.16

The respondent may, before commencement of an adjudication, notify the adjudicator in writing that he or she pleads guilty to the charge as set out in the summons referred to in regulation 9.10, and may with such notification submit to the adjudicator a written statement setting forth any mitigating circumstances.

9.17	If, after having received a notification in terms of regulation 9.16, the adjudicator is satisfied that the charge against the respondent can be disposed of without the holding of an adjudication -

9.17.1

the Authority shall in writing notify the respondent and the complainant and any person on whom a summons has been served in terms of regulation 9.11) that the adjudication in question will no longer be held; and

9.17.2

the adjudicator shall, mutatis mutandis apply regulation 9.6, having due regard to the respondent's statement in mitigation (if any) referred to in subregulation 9.2.6.2.

9.18	The Authority shall in writing notify the complainant and the respondent of the adjudicator's decision referred to in regulation 9.6.

Proceedings at adjudication

9.19	At the commencement of an adjudication the adjudicator shall ask the respondent to plead guilty or not guilty to the charge as set out in the summons, and the plea shall be recorded.

9.20	If the respondent refuses or fails to plead to the charge, a plea of not guilty shall be recorded.

9.21	A respondent is entitled to be assisted at an adjudication by a legal representative.

9.22	Evidence at an adjudication shall be given orally or be tendered by way of affidavits, provided that no affidavit shall be admitted in evidence if the adjudicator acting reasonably is satisfied that there are sufficient grounds why it should not be admitted.

9.23	The adjudicator shall administer an oath to or accept an affirmation from any person called to give evidence.

9.24	If the respondent has pleaded guilty to the charge and the adjudicator is satisfied that—

9.24.1

the charge can be disposed of without hearing evidence;

9.24.2

the act or omission with which the respondent is charged constitutes sanctionable conduct; and

9.24.3

the respondent is guilty as charged,

it shall find the respondent guilty and such finding shall either be made known at the adjudication or be communicated in writing to the Authority by the adjudicator within 14 days of the date of the respondent's plea, whereafter the Authority shall in writing notify both the respondent and the complainant of the finding.

9.25

If the respondent has pleaded not guilty to the charge, or if the adjudicator decides to hear evidence on the charge notwithstanding a plea of guilty, the procedure to be followed in respect of the adjudication shall be determined by the adjudicator, having due regard to the requirements and principles of natural justice.

9.26	The adjudicator must—

9.26.1

allow the prosecutor (if appointed) to present evidence in support of the charge and to cross-examine the respondent and any witness called by the respondent; and

9.26.2

allow the respondent or, if applicable, the respondent's legal representative, to present evidence rebutting the charge and to cross-examine any witness called by the prosecutor of the adjudicator.

9.27	In respect of each charge the adjudicator shall find the respondent either guilty or not guilty.

9.28	The adjudicator may find the respondent not guilty even if he or she has pleaded guilty.

9.29	If the adjudicator finds the respondent not guilty it shall determine whether or not to make an order as referred to in section 30 (7) of the Act.

9.30	The adjudicator's decision referred to in regulations 9.27 and 9.29 shall either be made known at the adjudication or be conveyed in writing to the Authority by the adjudicator within 60 days after all evidence in respect of the charge has been heard.

9.31	The Authority shall forthwith after obtaining the adjudicator's decision in writing notify the complainant and the respondent-

9.31.1

of the decision referred to in regulation 9.27; and

9.31.2

of the adjudicator's order referred to in regulation 9.29, if such order has been made.

9.32	If the adjudicator has found the respondent guilty of sanctionable conduct, it shall—

9.32.1

determine whether the respondent has previously been convicted of a charge deserving of sanction;

9.32.2

give the respondent the opportunity of adducing evidence in mitigation; and

9.32.3

give the respondent and the prosecutor (if appointed) the opportunity of addressing the adjudicator in connection with the appropriate penalty to be imposed.

9.33

A computer-generated extract from the records of the Authority stating the particulars of any prior charge brought against the respondent, the conviction of the respondent and the penalty imposed by the Authority or an adjudicator, shall be prima facie proof that the respondent has previously been convicted of sanctionable conduct.

9.34	After the requirements of regulation 9.32 have been complied with, the adjudicator shall deliberate in camera to determine the appropriate penalty to be imposed on the respondent.

9.35	The Authority shall in writing notify the complainant and the respondent of the penalty imposed on the respondent by the adjudicator.

9.36	An adjudicator may for the proper performance of its functions in terms of these regulations obtain such legal or other advice and consult such person or persons as it may deem necessary or appropriate.

9.37	Subject always to these regulations, the adjudicator may give directions to expedite the adjudication or settle any dispute between the complainant and the respondent relating to the subject-matter of the charge against the respondent.

Compensatory award

9.38	In order to exercise the discretion conferred upon it in terms of section 30 (7) (b) of the Act, and to determine the amount referred to in that section and to whom such amount is to be paid, the adjudicator—

9.38.1

shall have due regard to the evidence adduced during the adjudication;

9.38.2

may call any person as a witness or re-call any witness who has testified at the adjudication, and inquisitorially examine him or her on issues relevant to such determination;

9.38.3

may allow the prosecutor (if appointed) and the respondent to lead evidence in respect of any matter pertaining to the determination of a compensatory award by the adjudicator, and to address the adjudicator on the desirability of such award, the amount to be awarded and to whom it should be awarded, if at all;

9.38.4

may inquisitorially examine any witness called by the prosecutor or the respondent; and

9.38.5

may generally make such enquiries and accept such proof as it considers necessary or appropriate in order to determine the issues to be adjudicated upon.

9.39	If the adjudicator has determined that a compensatory award is to made, the Authority shall in writing notify the complainant and the respondent of—

9.39.1

the amount of the Award; and

9.39.2

the person to whom the award will be paid by the Authority in terms of section 30 (7) (b).

General

9.40

The Authority may publish a notice in the Government Gazette or any other publication, or release to the news media in a notice, announcing the conviction of the respondent of sanctionable conduct, together with details of the charge and the penalty imposed, provided that if the respondent has filed an appeal or commenced review proceedings against such conviction in terms of section 31 (1), such notice may be published only if the appeal or review proceedings have been dismissed or have not been proceeded with.

9.41	The complainant and the respondent may request the Authority in writing to furnish him or her with reasons for a decision of the adjudicator, provided such request—

9.41.1

shall be made to the Authority within 30 days after he or she has been informed, in writing by the Authority of the adjudicator's decision; and

9.41.2

is accompanied by an amount determined by the Authority from time to time.

9.42	If the Authority has received a request in terms of regulation 9.41, the reason in question shall be furnished in writing to the party making the request within 60 days thereafter.

9.43

The Authority shall be entitled to make such reasonable charge for the furnishing of a copy of the record of the proceedings at any adjudication or a transcription thereof, as the Authority may determine from time to time, provided always that the aggregate cost of providing such copy of the record shall never exceed R 300.

9.44	No person who has been—

9.44.1

duly summoned to be present at any adjudication, shall without lawful excuse fail to—

9.44.1.1

appear at an adjudication; or

9.44.1.2

remain present at an adjudication until he or she has been discharged by the adjudicator; or

9.44.2

called as a witness at an adjudication, shall without lawful excuse refuse to be sworn or to make an affirmation of to produce any book or other document or to answer any question which he may lawfully be required to answer.

9.45

No person shall disrupt the proceedings at an adjudication, or directly or indirectly threaten or insult any person involved in the adjudication in the performance of his or her function or duties as such, or act in a manner which, if the adjudication proceedings were to take place in a court of law, would constitute contempt of that court.

9.46	The proceedings at any adjudication shall be open to the public, except in so far as these regulations provide otherwise.

9.47	The adjudicator may on good cause—

9.47.1

direct any evidence adduced or to be adduced during an adjudication be heard in camera; and

9.47.2

order that no person may at any time in any way publish any information which may reveal the identity of any particular person or party to the proceedings.

9.48	The Authority shall record in its records full details of any decision, recommendation, order or determination made by an adjudicator pursuant to these regulations or the Act.

ANNEXURE A

PROPERTY PRACTITIONERS ACT, NO 22 OF 2019

Form of summons referred to be issued to a respondent

To: ……………………………………………………………………………………

You are hereby summoned to appear

on...............................................................................

at……………………………………………or so soon thereafter as the matter may be heard on that date,

................................................................................. .

before adjudicator of the Authority for the purposes of an adjudication into sanctionable conduct by you and to produce the following books and documents at the said time and place:

………………………………………………………………………………….........

The adjudication will be in respect of the charge which has already been delivered to you.

Should you fail without just cause, to comply with this summons or to remain present at the adjudication until lawfully discharged therefrom—

1	You will be guilty of an offence in terms of section 71 of the Property Practitioners Act, No 22 of 2019, and liable on conviction to a fine or to imprisonment for a period not exceeding ten years, or to both such fine and such imprisonment; and

2.	The Authority may, in terms of section 51 (1) (a) withdraw the fidelity fund certificate issued to you.

Signed at……………………. on this………………… day of ...................., .......................

…………………………………….

Chief Executive Officer

Property Practitioners Regulatory Authority

ANNEXURE B

PROPERTY PRACTITIONERS ACT, NO 22 OF 2019

Form of summons to be issued to a witness

To: ...........................................................................

You are hereby summoned to appear on.......................

at……………………………………. or so soon thereafter as the matter may be heard on that date,

at ...........................................................................

before an adjudicator of the Property Practitioners Regulatory Authority in order to give evidence at an adjudication in respect of

sanctionable conduct involving.......................................................................................... and to produce the following books and documents at the said time and place:

………………………………………………………………………………………………………

Should you fail, without lawful excuse, to be present at the time and place stated above you will be guilty of an offence in terms of section 71 and liable on conviction to a fine or to imprisonment for a period not exceeding ten years, or to both such fine and such imprisonment.