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Who Appoints the Conveyancer?

Firstly I think it is important to be aware that not all attorneys are conveyancers. Conveyancers are qualified attorneys who have studied further and obtained the additional qualification of conveyancer. Some conveyancers then go on to specialise in conveyancing and property law much the same as a doctor (general practitioner) may go on to specialise in a particular field of medicine. It is common practice in the Eastern Cape and almost all other provinces in South Africa for the seller to appoint the transferring attorney. There is normally a clause in the deed of sale to this effect. It is occasionally argued that the purchaser should have the right to appoint the transferring attorney as the purchaser pays the transfer costs. Whilst it is correct that the purchaser pays the transfer costs it is equally true that the property being transferred is obviously the seller's property.

The purchaser pays the purchase price to the transferring attorney and I think it is fair that the seller should have the right to appoint his own attorney to receive the proceeds of the sale of what is very often the sellers largest asset. Furthermore, most of the financial obligations created in the contract must be fulfilled by the purchaser. The purchaser must pay the purchase price, the transfer costs and occupational rental. As a result, it has been my experience as a conveyancer, that when there is a breach of the obligations created by the contract, the defaulting party is more often than not the purchaser. If the transferring attorney has been appointed by the Purchaser an awkward situation can arise if the Purchaser breaches the contract as you then have a situation where the transferring attorney now has to compel his own client (the purchaser) to perform his contractual obligations.

The attorney is obviously obliged to do so but his position is understandably more difficult than that of a transferring attorney who has been appointed by the seller.

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