OLD JOHANNESBURG WAREHOUSE (PTY)LTD
Auctioneers of Antiques, Collectables, Art and Jewellery
GENERAL CONDITIONS OF BUSINESS
Old Johannesburg Warehouse (Pty) Ltd (“Old Johannesburg Warehouse”) is an auction house which carries on business as Auctioneers. As Auctioneers, Old Johannesburg Warehouse would usually act as an Agent of the Seller of a lot or as Principal of a lot where Old Johannesburg Warehouse owns or has a financial interest in any lot. The contractual relationship of Old Johannesburg Warehouse with prospective Buyers and Sellers is governed by:
the conditions set out below;
any additional or special Terms and Conditions that Old Johannesburg Warehouse may impose (whether in the form of notices displayed at the premises at which any auction is conducted or announced by the Auctioneer prior to or during any auction and whether in respect of any specific lot or in general); and
such other terms and conditions as may be set out in any relevant catalogue (collectively referred to as the “General Conditions of Business”)
In these General Conditions of Business, headings are for convenience only and shall not be used in their interpretation. In these General Conditions of Business, 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:
1.1 “Act" means the Consumer Protection Act 68 of 2008, as amended from time to time and regulations promulgated in respect thereof;
1.2 “Auction” means any private treaty or auction sale at which a lot is offered for sale by Old Johannesburg Warehouse;
1.3 “Auction House” means Old Johannesburg Warehouse (Pty) Ltd;
1.4 “Auctioneer” means the representative(s) of Old Johannesburg Warehouse conducting an auction namely, Ms. Imre Lamprecht, Mr. Filip Taylor Parkins, and or Mr. Jonathan Christie;
1.5 “Auction without reserve” means an auction at which goods are sold to the highest bidder without reserve; the auction does not require a minimum bid; the auction does not allow competing bids of any type by the seller or an agent of the seller; and the seller of the goods cannot withdraw the goods from auction after the auction is opened and there is public solicitation or calling for bids;
1.6 “Bidder” means any person making, attempting or considering to make a bid or offer to buy a lot at an auction, including the Buyer of that lot;
1.7 “Bidders Record” means the document contemplated in rule 26 of the regulations;
1.8 “Buyer” means the Bidder who makes the bid or offer for any lot that is finally accepted by the Auctioneer 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;
1.9 “Buyer’s Commission” means the commission payable by the Buyer of a lot to Old Johannesburg Warehouse on the sale of that lot, calculated on the hammer price of that lot at the relevant current rates, with VAT at prevailing rates added to this commission only;
1.10 “Catalogue” means any advertisement, brochure, estimate, price list or other publication (in whatever medium, printed, electronically, digitally or otherwise) published by Old Johannesburg Warehouse in respect of any auction;
1.11 “Closed Auction” means an auction where the auctioneer or the Seller, as the case may be, issues an invitation to take part in an auction only to a finite list of consumers;
1.12 “Consumer” means a consumer as defined in section 1 of the Act and whose annual turnover or assets value falls below the threshold contemplated in section 5(2) of the Act and to whom the Act applies;
1.13 “Current Rates” means Old Johannesburg Warehouse current rates of commissions, premiums and other amounts payable to Old Johannesburg Warehouse for the time being, together with VAT thereon, all as published by Old Johannesburg Warehouse (whether in a catalogue or otherwise) or as agreed between a prospective Buyer or Seller and Old Johannesburg Warehouse;
1.14 “Hammer Price” means the bid or offer made by the Buyer for any lot that is finally accepted by the Auctioneer at a sale of that lot;
1.15 “Lot” means any item or items to be offered for sale by Old Johannesburg Warehouse at an auction and identified as such;
1.16 “Mock Auction” means an auction in which goods are sold for less than the highest bid, or part of the purchase price is repaid to the purchaser; the right to bid for goods is restricted to persons who have agreed to buy other goods; or any goods that are given away as gifts;
1.17 “Private Treaty” means the sale of any lot other than by auction sale at a price privately agreed on by the Buyer and Seller;
1.18 “Purchase Price” means the hammer price of any lot at a sale thereof, plus the applicable Buyer’s Commission for that lot, plus all recoverable expenses for which the Buyer is liable in respect of the lot;
1.19 “Recoverable Expenses” includes all fees, taxes (including VAT), charges and expenses incurred by Old Johannesburg Warehouse in relation to any lot that Old Johannesburg Warehouse is entitled to recover from a Buyer or Seller, as mutually agreed;
1.20 “Regulations” means the regulations promulgated in terms of section 120 of the Act;
1.21 “Reserve Price” means the confidential minimum hammer price (if any) at which a lot may be sold at an auction, as agreed in writing between the Seller of that lot and Old Johannesburg Warehouse;
1.22 “Seller” means the person named as the Seller of any lot, being the person that offers the lot for sale;
1.23 “Seller’s Commission” means the commission payable by the Seller to Old Johannesburg Warehouse on the sale of a lot that is calculated on the hammer price of that lot at the relevant current rate, with VAT at prevailing rates added to this commission only; and
1.24 “VAT” means Value Added Tax levied in terms of the Value Added Tax Act, No 89 of 1991.
1.25 “Vendor’s Roll” means the document contemplated in rule 28(4) of the regulations; and
1.26 “Website” means the website address of the auction house being – www.oldjwauctioneers.com.
2. BUYER’S CONDITIONS
2.1 The Buyer
2.1.1 Any dispute of whatever nature about any bid or about the identity of the Buyer shall be determined at the Auctioneer’s absolute discretion.
2.1.2 Every Bidder shall be deemed to act as Principal unless, prior to the commencement of any auction, Old Johannesburg Warehouse is provided with a written letter of authority acknowledging that a particular Bidder is acting on behalf of a third party.
2.1.3 All Bidders wishing to make bids or offers in respect of any lot must complete a registration form prior to that lot being offered for sale, which registration form will include an acknowledgement by the Bidder that he is acquainted with and bound by these General Conditions of Business. Bidders shall be personally liable for their bids and offers made during any auction, and shall be jointly and severally liable with their Principals if acting as an Agent. Subject to rule 30(2) of the Regulations, the Auctioneer shall ensure that every prospective Bidder must, prior to the commencement of an auction, register his or her identity in the Bidder’s Record, and such registration shall with necessary changes meet the requirements of Chapter 1 of the rules promulgated in terms of the Financial Intelligence Centre Act, No 38 of 2001 (“FICA”).
2.1.4 Bidders are advised to personally attend any auction at which a lot is to be sold by auction sale, but Old Johannesburg Warehouse will endeavor to execute absenteeism with written bids, telephone bids and/or electronic/online/web application bids, provided they are, in Old Johannesburg Warehouse’s absolute discretion, received in sufficient time and in a legible format and estimated over R1 000.00 (one thousand Rand). When bids are placed by telephone, email, online or by web application before an auction, they are accepted at the sender’s risk and must, if so requested by Old Johannesburg Warehouse, be confirmed in writing to Old Johannesburg Warehouse before commencement of the auction. Persons wishing to bid by telephone during the course of an auction must make proper arrangements with Old Johannesburg Warehouse in connection with such telephone bids at least 24 (twenty four) hours before the commencement of the auction. There are limited telephone lines available, and as telephone bids cannot be entirely free from risk of communication breakdown, Old Johannesburg Warehouse will not be responsible for losses arising from missed bids. Telephone bidding may be recorded and all bidders consent to such recording.
2.2 Examination Of Lots
2.2.1 It is the responsibility of all prospective Buyers to examine and satisfy themselves as to the condition of each lot prior to the auction, and that the lot matches any oral or written description provided by the Seller and/or Old Johannesburg Warehouse.
2.2.2 Old Johannesburg Warehouse shall not be liable for any error, misstatement or omission in the description of a lot (whether in any catalogue or otherwise), unless Old Johannesburg Warehouse, its employees or agents, engaged in intentional misleading or deceptive conduct.
2.2.3 In bidding for any lot, all bidders confirm that they have not been induced to make any bid or offer by any representation of the Seller or Old Johannesburg Warehouse.
2.3 Exclusions And Limitations Of Liability To Buyer
2.3.1 If a lot sold to a Buyer proves to be a forgery (which will only be the case if an expert appointed by Old Johannesburg Warehouse for such purpose confirms the same in writing), the Buyer may (as his sole remedy hereunder or at law) return the lot to Old Johannesburg Warehouse within 10 (ten) days of the date of the sale of that lot in the same condition in which it was as at the date of sale, together with a written statement by the Buyer detailing the defects to the lot, the date of the sale and the number of the lot. Should Old Johannesburg Warehouse be satisfied in its absolute discretion that the lot is a forgery and that the Buyer is capable of transferring good and marketable title to the lot to a third-party purchaser thereof, free from any encumbrances and other third party claims, the sale of that lot shall be set aside and the Hammer Price of that lot shall be refunded to the Buyer, provided that the Buyer shall have no rights and/or recourse against Old Johannesburg Warehouse.
2.3.2 Neither Old Johannesburg Warehouse nor the Seller:
18.104.22.168 shall be liable for any omissions, errors or misrepresentations in any information (whether written or otherwise and whether provided in a catalogue or otherwise) provided to Bidders, or for any acts or omissions in connection with the conduct of any auction of for any matter relating to the sale of any lot, including when caused by the negligence of the Seller, Old Johannesburg Warehouse, their respective employees and/or agents;
22.214.171.124 Give any guarantee or warranty to the Bidder other than those expressly set out in these General Conditions of Business and any implied conditions, guarantees and warranties are excluded.
2.3.3 The risk in any goods sold, shall pass to the Buyer immediately from the fall of the Auctioneer’s hammer. The purchaser acknowledges that the Auctioneer will secure the goods in the same way as any other goods under his control and is not liable in any way for any damage to, or shortfall in, the goods or any goods stolen or destroyed before the Buyer takes delivery of the purchased goods.
2.3.4 All Buyers are advised to arrange for their own insurance cover for purchased lots effective from the day after the date of sale for purposes of protecting their interests as Old Johannesburg Warehouse cannot warrant that the Seller has insured its interests in the lot or that Old Johannesburg Warehouse insurance cover will extend to all risks.
2.3.5 Old Johannesburg Warehouse does not accept any responsibility for lots damaged by insect infection, changes in atmospheric or climatic conditions or other conditions outside its control, and shall not be liable for damage to glass or picture frames.
2.4 Conduct Of The Auction
2.4.1 The Auctioneer has the absolute discretion to withdraw or re-offer lots for sale, to accept and refuse bids and/or to re-open the bidding on any lots should he believe there may be a dispute of whatever nature or error of whatever nature, and may further take such other action as he in his absolute discretion deems necessary or appropriate. The Auctioneer shall commence and advance the bidding or offers for any lot in such increments as he considers appropriate.
2.4.2 The Auctioneer shall be entitled to place bids on any lot on the Seller’s behalf up to the Reserve Price, where applicable.
2.4.3 The contract between the Buyer and the Seller of any lot shall be deemed to be concluded on the fall of the Auctioneer’s hammer at the Hammer Price finally accepted by the Auctioneer (after determination of any dispute that may exist). Old Johannesburg Warehouse is not a party to the contract of sale and shall not be liable for any breach of that contract by either the Seller or the Buyer.
2.5 Payment And Collection
2.5.1 A Buyer’s Commission, calculated at the applicable current rate of the Hammer Price, shall be payable by the Buyer to Old Johannesburg Warehouse in respect of the sale of each lot. The Buyer acknowledges that Old Johannesburg Warehouse, when acting as agent for the Seller of any lot, may also receive a Seller’s Commission and/or other fees for or in respect of that lot.
2.5.2 The Buyer shall pay Old Johannesburg Warehouse the Purchase Price immediately after a lot is sold, unless expressly agreed between the parties in writing, and shall provide Old Johannesburg Warehouse with details of his name and address and, if so requested, proof of identity and any other information that Old Johannesburg Warehouse may require.
2.5.3 Unless otherwise agreed in advance in writing, the Buyer shall make full payment of all amounts due by the Buyer to Old Johannesburg Warehouse on the date of sale (or on such other date as Old Johannesburg Warehouse and the Buyer may agree upon in writing) in cash, electronic funds transfer, credit or debit card.
2.5.4 Ownership in a lot shall not pass to the Buyer thereof until Old Johannesburg Warehouse has received settlement of the full Purchase Price of that lot in cleared funds. Furthermore, Old Johannesburg Warehouse shall not release a lot to the Buyer prior to full payment thereof. However, should Old Johannesburg Warehouse agree to release a lot to the Buyer prior to payment of the Purchase Price, full ownership of such lot shall not pass to the Buyer, nor shall the Buyer’s obligations to pay the Purchase Price be impacted, until such receipt by Old Johannesburg Warehouse of the full Purchase Price in cleared funds.
2.5.5 The Buyer shall collect the purchased goods at his sole risk and cost immediately after the auction has finished, or on the Monday or Tuesday after the auction during normal business hours.
2.5.6 The refusal of any approval, license, consent, permit or clearance as required by foreign or local law(s) shall not affect the Buyer’s obligation to pay for the lot.
2.5.7 The Buyer shall be and remain responsible for any removal, storage, or other charges for any lot and must at his own expense ensure that the lot purchased is removed immediately after the auction but not until payment of the total amount due to Old Johannesburg Warehouse has been received by Old Johannesburg Warehouse. All risk of loss or damage to the purchased lot shall be borne by the Buyer from the moment the Buyer’s bid is accepted by Old Johannesburg Warehouse in the manner referred to above. Neither Old Johannesburg Warehouse nor its servants or agents shall accordingly be responsible for any loss or damage of any kind, whether caused by negligence or otherwise, from date of the sale of the lot, whilst the lot is in their possession or control.
2.5.8 All packaging and handling of lots is at the Buyer’s risk and expense, and will have to be attended to by the Buyer, and Old Johannesburg Warehouse shall not be liable for any acts or omissions of any packers or shippers.
2.6 Remedies For Non-Payment Or Failure To Collect
Without prejudice to any rights that the Seller may have if any lot is not paid for in full or removed in accordance with the conditions of 2.5 above, or if there is any other breach of these General Conditions of Business by the Buyer, Old Johannesburg Warehouse as Agent of the Seller or as Principal of a lot shall, at its absolute discretion and without limiting any other rights or remedies that may be available to it or the Seller hereunder or at law, be entitled to exercise one or more of the following remedies:
2.6.1 To remove, store and insure the lot at its premises or elsewhere and at the Buyer’s sole risk and expense;
2.6.2 To rescind the sale of that or any other lots sold to the Buyer at the same or any other auction;
2.6.3 To reject future bids and offers on any lot from the Buyer;
2.6.4 To proceed with legal action against the Buyer for damages;
2.6.5 To re-sell the lot or cause it to be re-sold by public auction or private treaty, with estimates and reserves at Old Johannesburg Warehouse’s sole discretion, in which event the Buyer shall be liable for any shortfall between the original Purchase Price and the amount received on the re-sale of the lot, including expenses incurred by Old Johannesburg Warehouse and the Seller in such resale;
2.6.6 To retain that or any other lots sold to the Buyer at the same time or at any other auction and to release such lots only after payment of the total amount due;
2.6.7 To disclose the Buyer’s contact and personal details to the Seller to enable the Seller to commence legal proceedings;
2.6.8 To charge interest at a rate not exceeding the prevailing prime rate plus 3% per month on the total amount due to the extent that it remains unpaid after the date of the auction.
2.6.9 The Buyer consents in terms of section 45 of the Magistrates’ Courts Act, No 32 of 1944, as amended, to Old Johannesburg Warehouse and/or the Seller, as the case may be, instituting any legal proceedings for enforcing any of its rights in terms of these General Conditions of Business in the Magistrate’s Court of any district having jurisdiction in respect of the bidder by virtue of section 28(1) of the aforesaid Act. Notwithstanding the bidder’s consent to the jurisdiction of the Magistrate’s Court aforementioned, Old Johannesburg Warehouse or the Seller reserve the right to institute legal proceedings against the Buyer in any other competent court having jurisdiction in the matter, including but not limited to any High Court of the Republic of South Africa.
2.7 Cites Permits, Import, Export, Copyright Restrictions & Licenses
Old Johannesburg Warehouse advises Buyers from outside the Republic of South Africa to familiarize themselves with the laws of their own countries regulating imports, in particular, the requirements and/ or restrictions prior to placing a bid on a lot that contains taxidermy, animal parts such as ivory, bone, nail/claw, skin/hide, or rare and exotic wood types or other potentially restricted items such as, but not limited to, ammunition, (deactivated) firearms, edged weapons, military memorabilia and others. It is the Buyer's sole responsibility to identify these items and obtain any necessary permit for export, import, endangered species (including CITES) for that lot.
3. SELLER’S CONDITIONS
3.1 Old Johannesburg Warehouse Powers
3.1.1 The Seller irrevocably instructs Old Johannesburg Warehouse to offer for sale at an auction all objects submitted for sale by the Seller and received and accepted by Old Johannesburg Warehouse, and to sell the same to the relevant Buyer of the lot of which those objects form part, provided that the bid or offer accepted from that Buyer is equal to or higher than the reserve (if any) on that lot (subject always to 3.1.3) all on the basis set out in these General Conditions of Business. The Seller further irrevocably permits Old Johannesburg Warehouse to bid for any lot of which any of those objects form part as agent for one or more intending Buyers.
3.1.2 Old Johannesburg Warehouse are authorized to retain any objects not sold on auction for a period of 7 (seven) days after the auction for the possible sale of such objects by Old Johannesburg Warehouse by way of private treaty or otherwise pursuant to clause 3.1.3 below.
3.1.3 The Seller further irrevocably authorizes Old Johannesburg Warehouse to offer for sale whether by private treaty or otherwise, and without any further instruction or notification to the Seller, within 7 (seven) days after the auction, all or any remaining objects submitted for sale by the Seller and received and accepted by Old Johannesburg Warehouse in accordance with clause 3.1.1, which objects were not sold on auction, provided that the bid or offer accepted from that Buyer is equal to or higher than the amount that the Seller would have received had that lot been sold on auction at the reserve on that lot taking into account the deduction of the applicable Seller’s Commission and recoverable expenses for which the Seller is liable.
3.1.4 Old Johannesburg Warehouse and the Auctioneer each have the right, at their absolute discretion, to offer an object referred to above for sale under a lot, to refuse any bid or offer, to divide any lot, to combine two or more lots, to withdraw any lot from an auction, to determine the description of lots (whether in any catalogue or otherwise), to store accepted objects at the auction premises or any other location as he may deem fit and whether or not to seek the opinion of experts.
3.1.5 Old Johannesburg Warehouse shall not be under any obligation to disclose the name of the Buyer to the Seller, save for in instances specified in clause 2.6 above.
3.2 Estimated Selling Range and Descriptions
3.2.1 Any estimated selling range provided by Old Johannesburg Warehouse to the Seller is a mere statement of opinion and should not be relied upon as a true reflection of the Hammer Price which a lot may achieve at an auction. Old Johannesburg Warehouse reserves the right to revise the estimated selling range at any time.
3.2.2 The Seller acknowledges that Old Johannesburg Warehouse is entitled to rely on the accuracy of the description of a lot as provided by or on behalf of the Seller.
3.2.3 Old Johannesburg Warehouse shall not be liable for any error, misstatement or omission in the description of a lot (whether in any catalogue or otherwise), unless Old Johannesburg Warehouse, its employees or agents, engaged in intentional misleading or deceptive conduct.
3.3 Warranties of the Seller
3.3.1 The Seller warrants to Old Johannesburg Warehouse and the Buyer that:
126.96.36.199 He is the true owner of all objects and goods submitted for sale and/or is properly authorized by the true owner to do so, and that he is able to transfer objects and goods and title to all such objects and goods, free from any encumbrances and other third party claims, to the Buyer of the lot of which those objects form part;
188.8.131.52 He has complied with all requirements, legal or otherwise, in relation to any export or import of the lot, if applicable, and has notified Old Johannesburg Warehouse in writing of any failure by third parties to comply with such requirements in the past.
184.108.40.206 The lot and any written provenance given by the Seller are authentic;
220.127.116.11 The lot is fit for its purposes and safe if used for the purpose for which it was designed and is free from any defect not obvious on external inspection;
18.104.22.168 To the extent that the Seller required any approval, license, consent, permit or clearance by law to be in possession of any lot or for the sale of any lot, he is in possession of a valid approval, license, consent, permit and clearance;
22.214.171.124 Notwithstanding any other provision of these General Conditions of Business, the Seller and Old Johannesburg Warehouse, its servants or agents are not responsible for errors of description or for the authenticity of any lot, and no warranty or guarantee whatsoever is given by Old Johannesburg Warehouse, its servants or agents, or any Seller to any Buyer in respect of any lot, and all express or implied conditions, guarantees or warranties are hereby excluded.
126.96.36.199 The Seller of any object forming part of a lot NOT held by Old Johannesburg Warehouse at the auction premises (for example an aeroplane) warrants and undertakes to Old Johannesburg Warehouse and the Buyer that the relevant object will be available and in a deliverable state on demand to the Buyer.
188.8.131.52 The Seller agrees to indemnify and keep indemnified Old Johannesburg Warehouse and the Buyer against any loss or damages suffered as a consequence of any breach of these General Conditions of Business.
3.4 Commissions and Expenses
Seller’s Commission at the prevailing rate at the time of consigning the item, as displayed on the consignment document, shall be payable by the Seller to Old Johannesburg Warehouse in respect of the successful sale of each lot comprising of one or more objects submitted by the Seller for sale, with VAT added at prevailing rates to this Commission only. The Seller acknowledges that Old Johannesburg Warehouse may also receive a Buyer’s Commission and other fees for or in respect of that lot. Without derogating from the Seller’s obligation to pay the Seller’s Commission and any recoverable expenses for which the Seller is liable, the Seller irrevocably authorizes Old Johannesburg Warehouse to deduct from the Hammer Price of any lot the Seller’s Commission and all such recoverable expenses for which the Seller is liable, as agreed between him and the Old Johannesburg Warehouse as soon as the Purchase Price, or part of it, is received and prior to the sale proceeds being paid to the Seller.
3.5 The Reserve Price
3.5.1 All lots will be sold without Reserve Price or minimum price unless a Reserve Price has been placed on a lot, in which event such lot will be offered for sale subject to the reserve. A Reserve Price shall only be placed on a lot if agreed in writing between the Seller and Old Johannesburg Warehouse prior to the auction. A Reserve Price, once placed on a lot, may not be changed by the Seller without the prior written consent of Old Johannesburg Warehouse. Should Old Johannesburg Warehouse consent to an increase of the Reserve Price on a lot, Old Johannesburg Warehouse reserve the right to charge the Seller an additional fee as the object may not be sold on auction as a result of the increased Reserve Price.
3.5.2 Where a Reserve Price has been placed on a lot, only the Auctioneer may bid on behalf of the Seller, and it is strictly not allowed for the Seller himself to bid on this lot whatsoever.
3.5.3 Where a Reserve Price has been placed on a lot and the Auctioneer is of the opinion that the Seller or any person acting as agent of the Seller may have bid on the lot, the Auctioneer may knock down the lot to the Seller without observing the Reserve Price and the Seller shall pay to Old Johannesburg Warehouse the Buyer’s Commission and all expenses for which the Buyer is liable in addition to the Seller’s Commission and all expenses for which the Seller is liable.
3.5.4 Should no Reserve Price have been placed on a lot, Old Johannesburg Warehouse shall not be liable if the Purchase Price of that lot is less than the estimated selling range.
3.6.1 Unless Old Johannesburg Warehouse and the Seller have otherwise agreed in writing, Old Johannesburg Warehouse will insure all objects, with the inclusion of motor vehicles, consigned to it or put under its control for sale and may, at its discretion, insure property placed under its control for any other purpose for as long as such objects or property remain at Old Johannesburg Warehouse premises or in any other storage depot chosen by them.
3.6.2 If any payment is made to Old Johannesburg Warehouse under the said insurance, in the event of loss or damage to any object, Old Johannesburg Warehouse shall pay such amount to the Seller after deduction of the Seller’s Commission and expenses incurred by them.
3.6.3 In the event the Seller instructs Old Johannesburg Warehouse not to insure a lot or property submitted for sale, it shall at all times remain at the risk of the Seller. In such an event, the Seller undertakes to:
184.108.40.206 Indemnify Old Johannesburg Warehouse against all claims made or proceedings brought against them in respect of damage or loss to the lot of whatsoever nature and howsoever arising and in all circumstances, even when negligence is alleged or proved;
220.127.116.11 Reimburse Old Johannesburg Warehouse on demand, for all costs, payments or expenses made or incurred in connection herewith. All payment made by Old Johannesburg Warehouse in connection with such loss, damage, payments, costs or expenses shall be binding on the Seller as conclusive evidence thereof that Old Johannesburg Warehouse was liable to make such payment; and
18.104.22.168 Notify any insurer of the existence of the indemnity contained herein.
3.7 Payments for the Proceeds of Sale
3.7.1 Old Johannesburg Warehouse shall only be liable to remit the sale proceeds of a lot to the Seller thereof on the later of 30 (thirty) calendar days after the date of the sale of that lot OR 7 (seven) days after the date on which the full Purchase Price for that lot has been received by Old Johannesburg Warehouse in cleared funds.
3.7.2 If the Buyer of a lot fails to pay the total amount due to Old Johannesburg Warehouse within 21 (twenty one) days after the date of sale of that lot, Old Johannesburg Warehouse may give notice of this to the Seller of that lot and may request the Seller’s written instructions as to the appropriate course of action to be followed. Should Old Johannesburg Warehouse deem it so appropriate, Old Johannesburg Warehouse will assist the Seller to recover the total amount due from the Buyer. Should no written instructions be forthcoming from the Seller within 7 (seven) days after the request, the Seller hereby authorizes Old Johannesburg Warehouse, at Old Johannesburg Warehouse’s absolute discretion but at the Seller’s expense:
22.214.171.124 To agree terms for payment of the total outstanding amount
126.96.36.199 To remove, store and insure the lot sold;
188.8.131.52 To settle any claim by or against the Buyer on such terms as Old Johannesburg Warehouse in their absolute discretion deem fit;
184.108.40.206 To take such steps as Old Johannesburg Warehouse in their absolute discretion consider necessary to collect monies due to the Seller from the Buyer;
220.127.116.11 If necessary, to rescind the sale and refund any monies to the Buyer;
18.104.22.168 Should Old Johannesburg Warehouse pay an amount equal to the sale proceeds to the Seller before having received full payment of the Purchase Price from the Buyer, ownership of the lot shall pass to Old Johannesburg Warehouse.
22.214.171.124 If the sale of any lot is rescinded, set aside or cancelled by an action of the Buyer, and Old Johannesburg Warehouse has accounted to the Seller for the sale proceeds, the Seller shall immediately refund the full sale proceeds to Old Johannesburg Warehouse, who will in turn refund the Purchase Price to the Buyer and make the lot available to the Seller for collection. Any annulment, rescission, cancellation or nullification of the sale shall not affect the Seller’s obligation to pay the commission to Old Johannesburg Warehouse and/or to reimburse any expenses incurred by Old Johannesburg Warehouse.
3.8 Withdrawal of a Lot and Withdrawal Fees
3.8.1 A Seller may only withdraw a lot from being offered for sale by written notification to Old Johannesburg Warehouse at least 24 (twenty four) hours prior to the set date of the auction.
3.8.2 Upon receipt of proper notification of withdrawal as envisaged above, Old Johannesburg Warehouse reserves the right to charge the full Seller’s Commission plus the full Buyer’s Premium to the Seller as a withdrawal fee, both calculated on the latest middle estimate of the selling price of the property withdrawn, together with VAT and all expenses incurred in relation to the property.
3.8.3 If a lot is withdrawn, the Seller shall arrange for the collection and removal of the lot at the Seller’s expense within 3 (three) days after date of the withdrawal, provided the Seller has paid the recoverable expenses and applicable withdrawal fee to Old Johannesburg Warehouse.
3.9 Photography and Illustration
Old Johannesburg Warehouse shall have the full and absolute right to illustrate, photograph or otherwise reproduce images of any lot submitted by the Seller for sale, whether or not in conjunction with the sale, and to use such photographs and illustrations at any time and in their sole and absolute discretion. The copyright of all photographs taken and illustrations made of any lot by Old Johannesburg Warehouse shall be the sole and absolute property of Old Johannesburg Warehouse and Old Johannesburg Warehouse undertake to abide by all copyright applicable to any and all lots submitted for sale.
3.10 Unsold Lots
3.10.1 Old Johannesburg Warehouse are authorized to retain any objects not sold on auction for a period of 7 (seven) days after the auction and may proceed to sell any such unsold lot during this period, be it by way of private treaty or otherwise, without any further instruction or notification to the Seller in terms of 3.1.2.
3.10.2 Where any lot remains unsold, Old Johannesburg Warehouse shall notify the Seller accordingly and the Seller shall collect the lot at the Seller’s expense within 7 (seven) days after the dispatch by Old Johannesburg Warehouse of a notice to the effect that the lot has not been sold.
3.10.3 In these circumstances, the Seller must make arrangements either to re-offer the lot for sale or to collect and pay all recoverable expenses and other amounts for which the Seller is liable.
3.10.4 Should the Seller fail to collect the lot within 7 (seven) days of notification, the Seller shall in addition be responsible for all removal, storage and insurance expenses.
3.10.5 Should the Seller fail to collect the lot within 1 (one) month of date of the notification referred to above, Old Johannesburg Warehouse shall be authorized to sell the lot by private treaty or public auction, on such terms and conditions as they deem fit, without Reserve Price and to deduct from the Hammer Price all sums owing to Old Johannesburg Warehouse, including (without limitation) storage, removal, insurance expenses, the expenses of both auctions, reduced commission in respect of the auction as well as commission on the sale and all other reasonable expenses, prior to remitting the balance to the Seller or, in the event he cannot be located, placing it into a bank account in the name of Old Johannesburg Warehouse for and on behalf of the Seller.
3.10.6 Old Johannesburg Warehouse reserves the right to charge commission in accordance with the current rates on the bought in price and expenses in respect of any unsold lots.
RULES OF AUCTION
4. Rules Relating To Advertising
4.1 All goods forming the subject of auction have been advertised in compliance with the regulations in such a manner that the general public has had a reasonable opportunity to become aware of the auction, the goods on offer, and these rules governing the auction.
4.2 A consumer may, at any time during ordinary business hours, request that the Auctioneer to provide him with access to an advertisement relating to the auction, and the Auctioneer shall forthwith, without charging any fee whatsoever, comply with such a request.
4.3 The Auctioneer may provide a Bidder with the website which will provide a copy of the full advertisement in a format generally used.
5. Auctioneer’s Obligation
An Auctioneer shall not:
5.1 allow bidding on an item or a lot if the auction thereof has not been advertised;
5.2 during an auction, deviate from the sequence of goods as advertised;
5.3 knowingly misrepresent, or cause or permit to be misrepresented, the value, composition, structure, character or quality or manufacture of the goods put up for sale at the auction;
5.4 hinder the access of any person to any advertisement; or
5.5 pay any other person in order to be appointed as Auctioneer, whether in general or for a particular auction, or in respect of any specific goods.
6.1 The auction will commence at a published date and time, and will not be delayed to enable any specific person or more persons in general to take part in the auction.
6.2 The Auctioneer will, during the auction, announce the reason for the auction, unless the reason is the normal and voluntary disposal of goods by the owner.
6.3 The Rules of Auction will not be read out at the auction if:
6.3.1 the Rules of Auction were, where applicable, available to the general public at least 24 (twenty four) hours prior to the commencement of the auction;
6.3.2 in the case of a livestock or game auction contemplated in rule 33 of the regulations are the same as for previous auctions and are generally available on the Old Johannesburg Warehouse website, or at their business premises during normal business hours;
6.3.3 in the case of a Closed Auction, were made available to all persons to whom an invitation to take part in that auction was issued; and
6.3.4 at an auction, other than an auction through the internet, the Auctioneer invites any person present to object to the Rules of Auction not being read upon, and no person does.
6.4 A person who attends at the auction to bid on behalf of another person must produce a letter of authority meeting the requirements of rule 26(3) of the regulations in order to bid on behalf of that other person.
6.5 An Auctioneer shall provide a prospective Bidder, whose name appears in the Bidder’s Record, with a Bidder number before he may bid, as well as a paddle or other device to which that number is attached in such a way that it is clearly visible to the persons present at the auction.
6.6 The place where an auction is held shall be open and accessible to any member of the public, subject to the Auctioneer’s right to refuse a person the right to remain on the premises of Old Johannesburg Warehouse in the event that that person repeatedly behaves in such a way so as to disrupt the auction.
6.7 An Auctioneer shall have a Vendor’s Roll in which all the details of the auction are recorded, which shall, as a minimum, include:
6.7.1 the advertising of the auction;
6.7.2 these Rules of Auction;
6.7.3 the Bidder’s Record;
6.7.4 a list of all goods on auction, including goods which were withdrawn from auction, if any;
6.7.5 the names of the Buyers, the goods, or lots bought and the prices paid in respect thereof;
6.7.6 the details of any challenges to the validity of the auction or the conduct thereof, and the particulars of the persons making such challenges, if available;
6.7.7 any items or lots not sold; and
6.7.8 the details of any Reserved Price or any matter contemplated in section 45(4) and (5) of the Act
6.8 A Bidder shall have the right to inspect the goods as contemplated in rule 28(5) of the regulations. Notwithstanding that the Auctioneer shall afford consumers a reasonable period of time and opportunity to inspect the goods on offer prior to the commencement of an auction, the Auctioneer may:
6.8.1 refuse or restrict access to such goods if the Bidder, after gaining access in any way, acts unlawfully or in contravention of these Rules of Auction; and
6.8.2 require the Bidder to adhere to or submit to any security measures reasonably applicable in the circumstances.
6.9 In making a bid, a Bidder shall be deemed to have made himself fully acquainted with the goods in the lot for which he bids. Neither the Auctioneer, Old Johannesburg Warehouse nor the Seller accept any responsibility for the repair or maintenance of any goods sold at auction.
6.10 The Auctioneer shall, upon concluding the proceedings of an auction:
6.10.1 announce that the auction has come to an end;
6.10.2 sign the Vendor’s Roll; and
6.10.3 certify that the proceedings of the auction were to the best of his knowledge, conducted in accordance with these rules, the regulations and any other applicable law.
7. Bidding Outcome
A Bidder making the highest accepted bid for a lot shall become the Buyer immediately as such lots have been knocked down to him and where the Buyer is an agent acting for a Principal, the Buyer and the Buyer’s Principal jointly and severally. Should there be any dispute whatsoever over, or in respect of, any lot the auctioneer shall be entitled to settle such dispute at his sole discretion which shall include, but not be limited to, the absolute discretion to re-sell such lot or declare any bidder to be the purchaser. No party shall have a claim for damages of any nature in the event of the auctioneer settling any dispute. The Auctioneer's decision is final and binding on all of the Buyers.
8. Prohibited Conduct
8.1 No person may promote, facilitate, conduct, or take part in a mock auction.
8.2 No person may promote, organise, participate in or benefit from any kind of conspiracy between an Auctioneer, any participants in an auction, or any other persons who agree not to bid against each other at an auction or who otherwise conspire to decrease or increase the number or amounts of bids offered at an auction.
9.1 In a case where the Buyer is a consumer, these Rules of Auction will not:
9.1.1 exclude liability in respect of inaccurate information provided in the advertising of the auction;
9.1.2 exclude liability in respect of the rules of auction not meeting the requirements of the regulations; and
9.1.3 contain any qualification, reservation, or diminution of the requirements of the regulations save where such qualification, reservation, diminution is permitted in terms of the regulations.
9.2 In circumstances where a Buyer is not a consumer, neither Old Johannesburg Warehouse nor the Auctioneer shall be liable for return, repair, refund or any costs howsoever arising for any defects, failures, unsafe or hazards in any offered or auctioned goods. All goods are auctioned or offered as they are or stand (voetstoets).
9.3 In circumstances where the Buyer is a consumer, and the Auctioneer is conducting an auction via the internet, the Auctioneer may not exclude liability if any goods purchased by auction are not delivered to the Buyer thereof.
10. Bidder’s Record
10.1 The Bidder’s Record and the Vendor’s Roll are available for inspection during normal business hours without the charge of a fee, and where possible, such record and roll shall be made accessible through the website.
10.2 An Auctioneer shall, for every auction, have a Bidder’s Record to record the identity of all Bidders at an auction
10.3 The Bidder’s Record is available for public inspection in respect of the names of the Bidders and the Bidders numbers only, at any time, free of charge:
10.3.1 during an auction, at the premises of Old Johannesburg Warehouse; and
10.3.2 before or after an auction, at the premises of Old Johannesburg Warehouse during normal business hours.
10.3.3 A prospective Bidder in an auction to be held via the internet or other electronic platform must register by providing:
10.3.3.1 his full names, identification or passport number, age, physical address, internet protocol, address, and if applicable, login or name or password; and
10.3.3.2 the details of the means by which payment will be affected.