RULES OF AUCTION
(As auction house, herein after referred to as the “Auctioneer” and the person conducting the auction referred to as the “auctioneer”)
1. All goods sold by auction will be subject to a reserve price, unless specifically stated otherwise by the auctioneer at the start of the auction.
2. It is not allowed that the Owner / Seller, his agent or the Auctioneer may bid on any of the Owner's / Seller's goods sold by auction. However, individual Sellers may bid on other Sellers' animals.
3. These Rules of Auction comply with Section 45 of the Consumer Protection Act, Act 68 of 2008 (“the Act”) and the Regulations of the Act as applicable, which read as follows:
Section 45: “Auctions”
1) In this section, ''auction'' includes a sale in execution of or pursuant to a
court order, to the extent that the order contemplates that the sale is to be
conducted by an auction.
2) 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
3) A sale by auction is complete when the auctioneer announces its
completion by the fall of the hammer, or in any other customary manner,
and until that announcement is made, a bid may be retracted.
4) Notice must be given in advance that a sale by auction is subject to—
a) a reserved or upset price; or
b) a right to bid by or on behalf of the owner or auctioneer, in
which case the owner or auctioneer, or any one person on
behalf of the owner or auctioneer, as the case may be, may bid
at the auction.
5) Unless notice is given in advance that a sale by auction is subject to a
right to bid by or on behalf of the owner or auctioneer—
a) the owner or auctioneer must not bid or employ any person to
bid at the sale;
b) the auctioneer must not knowingly accept any bid from a
person contemplated in paragraph (a); and
c) the consumer may approach a court to declare the
transaction fraudulent, if this subsection has been violated.
6) The Minister may prescribe requirements to be complied with by an
auctioneer, or different categories of auctioneer, in respect of—
a) the conduct of an auction;
b) the records to be maintained with respect to property placed
for auction; and
c) the sale of any such property by auction.
4. The auction is conducted for the normal and voluntary disposal of the Owner's / Seller's goods.
5. The auction will start at the published time. The auction will not be delayed to allow any specific person or more persons to take part in the auction.
6. All goods sold at the auction are sold by the Auctioneer as agent on behalf of the Owner / Seller. The Owner / Seller hereby authorises the Auctioneer to issue invoices, credit and debit notes as applicable on its behalf and agrees not to issue the aforementioned for the same supply. The Owner/Seller also hereby authorizes the Auctioneer to collect the purchase price from the Buyer and the Owner / Seller do hereby cede to the Auctioneer all the Owner / Seller's rights, title and interest in and to its claim for payment of the purchase price against the purchaser, which session the Auctioneer do hereby accept.
7. The purchase price of the goods sold by auction specifically excludes VAT and VAT must be added to the purchase price and paid by the Buyer unless specifically indicated otherwise. Declaration and compliance related to all applicable taxes is the responsibility of the Owner/Seller and Buyer as relevant.
8. Risk in respect of profit and loss in the goods sold shall pass to the Buyer upon full payment of the said goods. This risk will specifically exclude mortality of the goods. The risk in mortality of the goods will remain with the Seller until the goods are loaded on the Buyer's transport or for a period of 5 (five) calendar days after the auction, whichever occurs first. Notwithstanding the passing of risk, ownership shall remain vested in the Seller until such time as the full purchase price has been paid to the Seller.
9. Delivery of the goods sold at the auction, shall only be given to the Buyer upon the Buyer fully performing its payment obligations in accordance with these conditions of sale. The Owner / Seller shall be responsible for costs incurred to deliver the goods on the Buyer's transport. The Buyer shall be responsible for procuring and paying for transport of the goods from the Owner / Seller's property.
10. The parties specifically agree that no bid may be retracted after the bid has been knocked down (fall of the hammer) and accepted by the Owner / Seller, unless the Owner / Seller consents thereto in writing.
11. Subject to any reserve price placed on any of the goods by the Owner / Seller, and the provisions of clause 12 and 13 below, the Buyer at any sale by auction shall be the highest bidder indicated by the auctioneer by the fall of the hammer or by such other means as the auctioneer may select.
12. The auction shall take place under the direct and exclusive control of the auctioneer. The auctioneer reserves the right, in its sole discretion, to refuse the bid of any person, to regulate the bidding and to indicate the highest bidder. If the auctioneer suspects that a bidder has not made a bona fide bid, or is unable to pay the purchase price or has not made satisfactory arrangements for payment of the purchase price, he may refuse to accept the bid of such bidder or accept it provisionally until the bidder has satisfied him that he is in a position to pay the purchase price or that he has made satisfactory arrangements for payment thereof. On refusal of a bid under such circumstances the goods may immediately be reauctioned.
13. In the event of a dispute arising amongst the bidders and / or the Auctioneer, the goods in dispute shall, at the sole discretion of the Auctioneer, be re-auctioned.
14. Any error by the auctioneer shall be entitled to be corrected by him or her immediately upon discovery.
15. Should any contractor remove any goods from the sale venue on instruction of the Auctioneer, acting on behalf of the Buyer, the contractor will be deemed to be the contractor of the Buyer who accepts all costs and risks connected with such removal.
16. The Owner / Seller warrants that there are no encumbrances on such goods, that the said goods are the property of the Owner / Seller, and that the Owner / Seller is competent and legally entitled to dispose of the goods.
17. The Owner / Seller, who offers the goods for sale, accepts all liability regarding the information furnished as to pedigrees, ages, dates of service, state of health or gestation or any other particulars which might be incorrect. In the event of any dispute the Buyer shall only have a claim against the Owner / Seller and not against the Auctioneer. The Owner / Seller and Buyer indemnify the Auctioneer against any claim(s) regarding the information furnished as to pedigrees, ages, dates of service, state of health or gestation or any other particulars which might be incorrect.
18. Where goods are put up for auction the following conditions apply to such goods:
18.1 Where the age of the animals are not specified, will the animal be regarded to be in a good and healthy condition.
18.2 All animals put up for auction must, where applicable, must be visibly marked with ear tags and/or micro ships.
18.3 Where available, DNA information of the animals must be provided to the Auctioneer in order for the Auctioneer to include such information in the Auction Catalogue.
18.4 In the event where the photos and specifications are not animal specific; the buyer has the right to choose a similar animal, as described, from the herd concerned, and presented in the Auction Catalogue.
18.5 In the event where the Client acted bona fide and the animals put up for auction did not meet the specifications as described in the Auction Catalogue (i.e. pregnancy, age horn length, etc.), the buyer has the right to cancel the transaction or to negotiate new terms and conditions. The commission shall be payable on the new terms as agreed upon between the Owner/Seller and Buyer and approved by the Auctioneer.
18.6 Horn lengths provided by the Client or its duly authorised representative, of animals put up for auction, are warranted by the Client. All delayed deliveries due to an additional pregnancy is at the Buyer's risk, including calves. The period required for an animal to be certified pregnant will be determined by the Seller. The Buyer is advised to take out insurance cover on animals remaining on the Seller(s) farms where risk has passed to the Buyer.
19. The Owner / Seller warrants that the goods sold are free of any known patent and latent defects and that any right or claim ceded to the Auctioneer in terms of these Rules of Auction is free of any defect or right of deduction or set-off, and that the said right or claim is fully and immediately enforceable against the Buyer.
20. The Buyer shall, prior to the sale, ascertain whether there are any defects in the goods and any bid by a Buyer shall be considered as acceptance of the goods with any patent or latent defects in their condition at the time of sale.
21. The Buyer shall not be entitled to withhold payment of the purchase price to the Auctioneer as a result of any possible or pending claim that he may have against the Owner / Seller on the grounds of misrepresentation or for any other reason whatsoever.
22. The purchase price is payable by the Buyer to the Auctioneer via electronic transfer (“EFT”) on the date of sale (“the payment date”) unless other payment terms and or means are agreed between the Auctioneer and the Buyer. The Auctioneer reserves the right to refuse any other method or means as payment. Payment by way of EFT will only be regarded as done as soon as the funds transferred reflects and are available in the Auctioneer's bank account.
23. In the event that the Auctioneer agrees to facilitate the purchase of the goods by paying an amount equal to the purchase price to the Owner / Seller before the Buyer makes payment to the Auctioneer (“the Payment Terms Agreement”), then the following shall apply:
23.1 The election to make any payment to the Owner / Seller shall be in the sole and absolute discretion of the Auctioneer, which discretion may be exercised separately in regard to each transaction entered into by the Buyer.
23.2 Upon payment of the amount referred to in 23.1 above the Owner / Seller's right, title and interest in and to any claims and other rights against the Buyer in terms of or connected with the sale of the goods shall forthwith be ceded and transferred to the Auctioneer, which session the Auctioneer hereby accepts.
24. In the event of any Payment Terms Agreement between the Auctioneer and the Buyer, the following shall apply;
24.1 No Payment Terms Agreement shall be valid unless reduced to writing and duly signed on behalf of the Auctioneer. The facilitation of any sale by the Auctioneer as referred to in this paragraph 25 shall be strictly subject to the terms and conditions of the Payment Terms Agreement.
24.2 In the event of any conflict between the contents of this document and the Payment Terms Agreement, the provisions of the Payment Terms Agreement shall prevail.
24.3 No application for credit as defined in section 8 of the National Credit Act, Act 34 of 2005, will be received or considered by the Auctioneer.
25. Anyone that intends to bid at the auction (Buyer) must register his or her identity on the bidder's record prior to the commencement of the auction and such registration must meet the requirements of the FICA (Financial Intelligence Centre Act, 2001) in respect of the establishment and verification of identity of the person. The prospective Buyer must sign the registration entry and furnish the Auctioneer with a copy of his/her identity document and proof of residence (not older than 3 months).
26. Any person who purchases on behalf of a Principal (i.e. natural person) must furnish the Auctioneer with a written signed Power of Attorney, prior to the commencement of the auction, failing which he/she will be personally liable for payment of any purchases made by him/her. The person bidding on behalf of or signing any document on behalf of the purchaser pursuant to a successful bid hereby binds himself/herself personally as co-principal debtor with the Buyer for payment of the purchase price and personally guarantees all the obligations of the Buyer under these Rules of Auction.
27. A person who attends the auction, to bid and to sign the bidder's record, on behalf of another person (i.e. on behalf of a company or legal entity) must produce a signed letter of authority that expressly authorizes him or her to bid or sign the bidder's record on behalf of that person. Where a person is bidding on behalf of another entity the letter of authority must appear on the letterhead of the entity and must be accompanied by a certified copy of the resolution, if required, authorizing him or her to bid on behalf of the entity. The person bidding on behalf of or signing any document on behalf of the Buyer pursuant to a successful bid hereby binds himself personally as co- principal debtor with the Buyer for payment of the purchase price and personally guarantees all the obligations of the Buyer under these Rules of Auction.
28. In the event where a Buyer allows another person to purchase on his or her Buyer's number, the registered Buyer shall be liable for payment of such purchases. No bid by an unregistered Buyer will be accepted by the Auctioneer and the Buyer will have no claim to any of the goods allegedly purchased by him.
29. Until all amounts owing by the Buyer have been paid in full, the Buyer hereby:
29.1 irrevocably undertake to identify the purchased goods in such a manner that he can at any time identify and indicate the goods deemed to be the property of, and pledged to, the Auctioneer.
29.2 grants the Auctioneer at all reasonable times access to the premises where the goods are stored or kept for the purposes of perfecting its pledge and exercising any other rights in terms of these Rules of Auction.
30. The Owner / Seller, Buyer and Auctioneer herewith confirm that any action instituted by the Auctioneer against the Owner / Seller and / or Buyer may be instituted in any competent Court. This agreement will be governed in accordance with the laws of the Republic of South Africa.
31. A certificate issued by a Manager of the Auctioneer, whose appointment and authority shall not be necessary to prove, shall be prima facie proof of the amount owing by the Buyer to the Owner / Seller or the Auctioneer.
32. Any indulgence granted by the Auctioneer to the Buyer or the Owner / Seller will not prejudice the rights of the Auctioneer in terms of these Rules of Auction and such indulgence will not constitute an amendment or waiver or novation of these Rules of Auction.
33. The entries made in the Auctioneer's auction roll shall be prima facie evidence of the transaction and shall be binding on the Owner / Seller and the Buyer.
34. The bidder's record and the vendor or vendu roll will be made available for inspection within reasonable time after the auction at the office of the Auctioneer during normal business hours free of charge.
35. All money will be paid into a trust account for the benefit of the Owner / Seller, minus the agreed commission and additional costs agreed upon by and between the Auctioneer and Owner / Seller.
36. Any goods entered or offered for sale are subject to payment by the Owner / Seller / Buyer of the agreed commission, or in absence of an agreement the usual commission by the Owner / Seller / Buyer to the Auctioneer at the rate customarily charged by the Auctioneer from time to time, whether the goods are sold at the auction or thereafter, or within 30 days thereafter by private treaty. Unless otherwise agreed in writing, commission shall become due and payable by the Owner / Seller/ Buyer upon the fall of the hammer or upon the entering into of any private treaty involving the Owner / Seller's said goods, whichever date is the earlier, and notwithstanding any breach on the part of the Owner / Seller/ Buyer.
37. Every bid shall constitute an offer to purchase the property or goods for the amount bid, which the Owner / Seller or the Auctioneer may accept or reject in their absolute discretion. The Owner / Seller and Auctioneer are entitled, in their absolute discretion to withdraw the property or goods from the sale prior to acceptance by the Owner / Seller.
38. If no bid equals or exceeds the reserve price, if any, the property or goods may be withdrawn from the auction.
39. The Auctioneer accepts no liability for any withdrawal of goods from sale.
40. The Buyer will be responsible to obtain all permits, certificates and transport documents pertaining to the game purchased at the auction. The Buyer will be liable for the payment of the purchase price even if he is unsuccessful in obtaining the required permits, certificates or transport documents. As such it is specifically stated that no sale on the auction is subject to the Buyer's successful application for any permit, certificate or transport document.
41. No bid may be withdrawn after the fall of the hammer until the expiry of the confirmation period (if any) that is provided for in the Conditions of Sale, during which time the offer shall be open for acceptance by the Owner / Seller or his agent and if the offer is accepted the sale shall be deemed to be a sale by auction for purposes of the Act.
42. In the event of the sale requiring the consent of any statutory authority or any court of law, then this auction will be subject to the granting of such consent.
43. The Buyer and the Owner / Seller do hereby consent to the payment of attorney and own client costs in the event of any legal action being instituted against them by the Auctioneer or Owner / Seller.
44. Any agreement contrary to these Rules of Auction shall not be binding unless it is confirmed in writing and signed by a manager of the Auctioneer.
45. If any clause or term of these Rules of Auction should be invalid, unenforceable and illegal, then the remaining terms and provisions of these Rules of Auction shall be deemed to be severable there from and shall continue in full force and effect unless such invalidity, unenforceable or illegality goes to the root of these Rules of Auction.
46. Default by Buyer: Should the Buyer/Purchaser refuse or otherwise fail to pay the purchase price within 7 days of the due date, the Auctioneer shall be entitled to:
46.1 claim interest from the Buyer/Purchaser the prescribed mora interest rate calculated from the date of purchase to date of payment, and/or
46.2 repossess the goods to resell same at the risk of the defaulting Buyer/Purchaser who shall be liable for all costs in connection with the resale and any loss or damage incurred, and will not be entitled to any profit that may arise from the resale, and/or
46.3 institute legal proceedings for the payment of any amount owing or for the return of the goods in which event the provisions of clause
46.2 will apply,
46.4 recover the Auctioneer's legal costs calculated at the Attorney and own Client tariff as well as collection, tracing, storage and transport costs, and
46.5 retain in pledge any goods or other property in the possession of the Auctioneer belonging to either the Buyer / Purchaser or the Owner / Seller as security for the due fulfilment of any obligation owed to the relevant party or the Auctioneer.
47. Any dispute between the parties will be governed by the South African legal system and legislation.
48. The Auctioneer reserves the right to amend these Rules of Auction in writing. By entering a bid any prospective Buyer binds himself or herself to these Rules of Auction, as well as any special conditions of sale set forth in the auction catalogue.