WHO CHOOSES THE CONVEYANCER?
Is it the buyer by virtue of his or her buying power? As they say “He who controls the purse, calls the shots.” Is this the case in conveyancing? Is it the Estate Agent who will have negotiated the sale who chooses the conveyancer or is it the seller as the property owner who chooses the conveyancer?
In dealing with this question, Justice Mathonsi had this to say in the case of Scapelox Trading (Pvt) Ltd v Mashangwa Family Trust, Upenyu Mashangwa, Blessing Mashangwa, Commissioner General, Zimbabwe Revenue Authority & Registrar of Deeds HH 91/14
“It is trite that a conveyancer represents the seller and as such the practice in this jurisdiction is that the seller chooses a conveyancer of his choice to transfer the property from the seller to the purchaser. It is for this simple reason that it is the seller who gives a power of attorney to the conveyancer to pass transfer to the purchaser.”
HOW ARE THE CONVEYANCING FEES CALCULATED?
The conveyancing fees are determined by the Law Society of Zimbabwe (Conveyancing fees) By-Laws SI 24/2013.
They are as follows:
(i) On the first $ 1 000.00 and under – $ 400.00
(ii) On the next $1 001.00 – $250 000.00 – 4% of the purchase price or value of the property
(iii) On the next $250 001.00 – $500 000.00 – 3% of the purchase price or value of the property
(iv) Over $500 000.00 – $1 000 000.00 – 2% of the purchase price or value of the property
VAT is chargeable on conveyancing fees. Conveyancers may also recover reasonable disbursement costs.
In addition to the conveyancing fees, the buyer is also required to pay Stamp Duty which is approximately 4% of the purchase price or the value of the property.
UNDERCUTTING IN CONVEYANCING
What is undercutting? Again Justice Mathonsi dealt with this issue in the case referred to above. He had this to say:
“I now turn to deal with the issue of undercutting in conveyancing which has become thorny in this jurisdiction. Quite often legal practitioners find themselves having to undercut in conveyancing fees because of the cut-throat competitive nature of this country’s conveyancing practice usually putting established law firms who have engaged a monopoly in that field against small and upcoming firms. The latter firms usually fall into the temptation of accepting to undertake transfers at far less than the tariff prescribed by the Law Society of Zimbabwe in order to attract clients. It is a shameful practise which has no place in our legal system. It is such conduct which is called under-cutting.”
Can a conveyancer charge less than what is prescribed by the Law Society Conveyancing Tariff? Justice Mathonsi answered this question by saying:
“There must be uniform application of the conveyancing fees. Anything else is unlawful and represents dishonourable and unworthy conduct by a legal practitioner which should be punishable.”
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