TERMS & CONDITIONS OF BUSINESS AND RULES OF CONSIGNMENT ON AUCTION
Swelz (Pty) Ltd Trading as Stephan Welz & Co., (“The Company”)
The Company carries on its business as auctioneers in accordance with these Terms and Conditions of Business and Rules of Auction, by agreeing to this our sellers confirm these terms of consignment as well.
In these conditions of business, headnotes are for convenience only and shall not be used in their interpretation, any expression which denotes any gender shall include the other genders, any expression which denotes the singular shall include the plural (and vice versa), any expression which denotes a natural person shall include a juristic person (and vice versa) and the following terms shall have the following meanings:
“auction” means any private treaty or auction sale at which a lot is offered for sale by the Company;
“auctioneer” means the representative of the Company conducting an auction;
“bidder” means any person making, attempting or considering to make a bid or offer to buy a lot at an auction, or private treaty sale;
“Buyer” means the bidder who makes the bid or offer for any lot that is finally accepted by the auctioneer (after determination by the auctioneer of any dispute that may exist in respect thereof) at a sale of that lot, and (where the Buyer is an agent acting for a principal), the Buyer and the Buyer’s principal jointly and severally;
“Buyer’s premium” means the premium payable by the Buyer of a lot to the Company on the sale of that lot, calculated on the hammer price of that lot at the relevant current rates;
“catalogue” means any advertisement, brochure, estimate, pricelist, condition report and other publication (in whatever medium, electronically or otherwise) published by the Company in respect of any auction;
“current rates” means the Company’s current rates of commission, premiums and other amounts payable to the Company for the time being, together with VAT thereon (if any), all as published by the Company (whether in a catalogue or otherwise) or as agreed between a prospective Buyer or Seller (as the case may be) and the Company;
a “deliberate forgery” means an imitation made with the intention of deceiving as to authorship, origin, date, age, period, culture or source, which is not shown to be such in the description in the catalogue and which at the date of the sale had a value materially less than it would have had if it had been in accordance with that description and includes any misrepresentation made with intention of deceiving as to authorship, origin, date, age, period, culture or source;
“hammer price” means the bid or offer made by the Buyer for any lot that is finally accepted by the auctioneer (after determination by the auctioneer of any dispute that may exist in respect thereof) at a sale of that lot, together with VAT thereon (if any);
“lot” means any item or items to be offered for sale by the Company at an auction or private treaty sale;
“prime rate” means the publicly quoted base rate of Interest (percent, per annum compounded monthly in arrears and calculated on a 365 day year, irrespective of whether or not the year is a leap year) from time to time published by RMB Private Bank, or its successor-in-title, as being its prime overdraft rate, as certified by any manager of such bank, whose appointment, authority and designation need not be proved;
“private treaty” means the sale of any lot other than by auction sale at a price privately agreed on by the Buyer and Seller;
“purchase price” means the hammer price of any lot at a sale thereof, plus the applicable Buyer’s premium for that lot, plus all recoverable expenses for which the Buyer is liable in respect of that lot;
“recoverable expenses” includes all fees, taxes (including VAT), charges and expenses incurred by the Company in relation to any lot that the Company is entitled to recover from a Buyer or Seller;
“reserve” means the confidential minimum hammer price (if any) at which a lot may be sold at an auction as agreed between the Seller of that lot and the Company in writing;
“sale proceeds” means the amount due by the Company to the Seller of a lot in respect of the sale of that lot, made up of the hammer price of the lot, less the applicable Seller’s commission for that lot, less all recoverable expenses for which the Seller is liable in respect of that lot and any other amounts due to the Company by the Seller in whatever capacity and howsoever arising.
“sale” means the sale of any lot at an auction, whether done by private treaty or auction sale, and “sell” and “sold” shall have corresponding meanings;
“Seller” means the person named as the Seller of any lot, being the person that offers the lot for sale;
“Seller’s commission” means the commission payable by the Seller to the Company on the sale of a lot that is calculated on the hammer price of that lot at the relevant current rate;
“VAT” means value added tax levied in terms of the Value Added Tax Act, 1991.
B. GENERAL TERMS AND RULES OF AUCTION
Every auction and/or sale shall be governed by these terms, section 45 of the Consumer Protection Act 68 of 2008 (“the Act”) and the rules of auction and in accordance with the laws of South Africa.
The provisions of section 45 reads as follows:
GENERAL TERMS AND RULES OF AUCTION
1.1 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.
1.2 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 transaction.
1.3 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.
1.4 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, 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.
1.5 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 B.1.5 (a); and
(c) The consumer may approach a court to declare the transaction fraudulent, if this subsection has been violated.
1.6 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.
2. The rules of the auction are those promulgated in terms of the Regulations promulgated by the Minister of Trade and Industry dated 23 November 2010 under Government Gazette No. 33818 on 1 April 2011 and any subsequent amendment and/or variation to the rules and these terms.
3. In the event of there being a discrepancy between the rules and the terms herein, the rules shall be operative and overriding.
4. Every bid constitutes an offer, open for acceptance by the Auctioneer and such acceptance shall be signified by the fall of the hammer, or by the acceptance of the offer by the Company in the event of a private sale.
5. Buyers are solely responsible to satisfy themselves prior to auction/private treaty sale as to the condition of each lot and should exercise and rely on their own judgement as to whether the lot accords with the description or not.
5.1 Neither the Company, its servants, its employees, its agents and/or the Auctioneer shall be responsible whether directly or indirectly for any errors, omissions, acts of negligence, incorrect and/or inadequate descriptions or defects or lack of authenticity and/or inadequate descriptions or defects or lack of authenticity or lack of ownership or genuineness in any goods auctioned and sold. The Company shall not be held responsible for any incorrect, inaccurate or defective description of the goods listed for sale in the catalogue or in any condition report, publication, letter, or electronic transmission or to the attribution, origin, date, age, provenance, condition and description of the goods sold, and shall not be responsible for any loss, damage, consequential damages and/or patrimonial loss of any kind or nature whatsoever and howsoever arising thereout.
5.2 No warranty, whether express, implied or tacit is given by the Company, its servants, its agents, or its employees, or the Auctioneer or the Seller or the Buyer of any lot shall be binding or legally enforceable.
5.3 Any lot which proves to be a ‘deliberate forgery’ (which will only be the case if an expert appointed by the Company for such purposes confirms same in writing) may be returned by the Buyer (as his sole remedy hereunder or at law) to the Company within 21 days of the date of auction in the same condition in which it was at the time of the auction, accompanied by a statement of defects, the number of the lot, and the date of the auction at which it was purchased. If the Company is satisfied that the item is a ‘deliberate forgery’ and that the Buyer has and is able to transfer a good and marketable title to the lot, free from any third-party claims, the sale will be set aside and any amount paid in respect of the lot will be refunded, subject to the express condition that the Buyer will have no rights or claims against the Company if:
5.3.1 the description in the catalogue at the date of the sale was in accordance with the then generally accepted opinion of scholars and experts or fairly indicated that there was conflict of such opinion; or
5.3.2 the only method of establishing at the date of publication of the catalogue that the lot was a ‘deliberate forgery’ was by means of a scientific process not generally accepted for use until after publication of the catalogue, or by a process which was unreasonably expensive or impractical.
5.4 Buyer’s claiming under this condition will be limited to any amount paid in respect of the lot and will not extend to any loss or damage of whatsoever nature suffered, or expense incurred by him/her.
5.5 The benefit of this condition will not be assignable and will rest solely and exclusively in the Buyer who, for the purpose of this condition, will be and only be the person to whom the original invoice is made out by the Company in respect of the lot sold.
6. The Company will have the sole, exclusive and absolute right, at its discretion, to refuse admission to any person to its premises or any other premises at which such auction is to be conducted.
7. The Company has the sole and absolute discretion without having to give any reasons therefore, to refuse any bid, withdraw or reoffer lots for auction (including after the fall of the hammer), cancel any sale if the Auctioneer and/or the Company believes that there may be an error or dispute of any nature whatsoever, and shall have the rights, as it deems fit, to divide any lot; to combine any two or more lots, or to put up any lot for auction again.
8. Any notice required to be given in connection with this agreement:
8.1 if given by the Company, shall be delivered by hand, or sent by registered post; or by telefax or by email, provided such address is given in which event such address shall constitute the domicilium citandi et executandi of the person to whom notice must be given. Notice shall be deemed to have been received by the person who is required to receive such notice, whether given personally or to a third party or any other manner as envisaged by this clause:
8.1.1 on the date of delivery if delivered by hand or telefax or email;
8.1.2 on the fourth (4th) day from the date of posting, including the date of posting if posted by prepaid registered post from within the Republic of South Africa, which postage shall be deemed to have been sent on receipt of the post office of proof of posting.
8.2 if required by the Company, such written notification must be given to the Company at its telefax number and/or email address as published in the brochure, alternatively the Company’s published address and/or fax number.
9. The Seller submits to the non-exclusive jurisdiction of the South African courts.
10. The Buyer and/or Seller, as the case may be, hereby pledges the goods either sold and/or bought as security to the Company for all amounts which are owing to it.
11. No variation, alteration, consensual termination, representation, condition, term or warranty, relaxation or waiver or release by the Company, or estoppel against the Company, or the suspension by the Company, in respect of these terms and conditions of business, or any part thereof, shall be of any force or effect unless reduced to writing and signed by the Company and the Buyer.
12. The Buyer shall be responsible for the payment of the Company’s legal costs, calculated on the scale as between attorney and client incurred by the Company in enforcing any of its rights of its principal whether such rights are exercised by way of legal proceedings or not.
13. Notwithstanding the nature or amount of the claim by the Company, the Company and the Buyer hereby consent to the jurisdiction of the Magistrate’s Court otherwise having jurisdiction; this consent is without prejudice to the right of the Company to institute proceedings and to obtain judgment or any order in the High Court of competent jurisdiction, the Company nevertheless still being entitled to claim on the High Court scale of costs and expenses, all as set out in this agreement.
IMPORTANT NOTES WHEN CONSIGNING WORK FOR AUCTION OR SALE
Estimates and property receipts
1. Estimates and reserves must be agreed by the Seller.
2. Reserves should ideally be 20% to 30% below the low estimate to entice buyers to bid.
3. The Seller should be offered the option to place items on the Company's online auctions as an alternative - this must indicated by the seller.
4. Full details, banking details and copy of Identity Document must be presented when completing a property receipt or by email.
5. Consignor must sign and date the property receipt or alternatively agree to the estimates by email to the relevant department specialist.
6. By signing the property receipt the Seller warrants that he/she is the lawful owner of the works consigned.
7. The Seller acknowledges that the Company may also receive a Buyer's premium [and other fees for or] in respect of a lot.
Insurance cover (Clause 9)
Items consigned to the Company are covered by insurance while in our possession at the mid-point between the low and high estimate as agreed with the consignor.
Charges for Withdrawn lots (Clause 13)
In the event that a lot is withdrawn from the auction the Seller will be held liable for both the Seller and Buyer commissions based on the mid-point of the estimates agreed.
Pay-out of sale proceeds (Clause 10)
1. Payment of sale proceeds will be effected 30 to 45 days from the date of auction subject to buyer having paid in full.
2. If credit terms have been agreed between the Company and the buyer the Seller will be paid out within 45 days from the date of the auction.
3. Where the buyer fails to pay within 45 days the Company will contact the Seller and take instruction as to the appropriate course of action.
Seller’s commission rates and VAT (Clause 6)
• Items R10,000 and below – 17%
• Items above R10,000 - 14%
• Collectable cars - 10%
• VAT is chargeable on commission and will be deducted from the sale proceeds
Unsold auction lots/uncollected items (Clause 18)
1. The Company reserves the right to sell any unsold Iots within the first 15 days following the auction. The Company further reserves the sole and absolute right to sail any unsold lot within the first 25 days of the first 15 days provided it is mutually agreed between the Company and the Seller.
2. The seller must be offered the option to place any unsold ”Items on the Company’s online auction. The value may have to be revised accordingly.
3. Alternatively, the work would be offered for auction on one of the future sales subject to values being revised and
4. Where any lot fails to sell within the said period the Company will notify the Seller accordingly. Should the Seller decide not to re-offer the work for sale then the work should be collected within 30 days from the date of notification or the Seller should give instruction to the Company to re-deIiver the goods to the Seller at the SeIIer’s cost or dispose of the goods in accordance with the instruction of the Seller. In the event that works are not collected with- in a reasonable time period, the Company will endeavour to contact the Seller again and notify the Seller to collect the items immediately. Within 30 days of notification and should the Seller not have collect such goods, the Seller hereby irrevocably transfers ownership of such goods to the Company, such ownership shall be irrevocable the Company shall then, in its absolute discretion dispose of such goods at the best price it can obtain from a willing and able buyer.
5. Collection of works unsold - please note that we will not release works unless we have a letter (preferably on a formal company letterhead if applicable} authorising us to do so, which must be accompanied with by a copy of the Sellers Identity Document as well as the ldentity Document of the person collecting the works. The Seller must also endeavour to call the Company and make suitable arrangements for collection failing which the works will not be released.