1.  Introduction

2.  Definitions

1. The terms "you" and "user" as used herein refer to all individuals and/or entities accessing the website.
2. The term "website" as used herein refers to www.aguilarealestate.co.za
3. The terms "we" and "us" as used herein refers to Aguila Real Estate

3.  General

By using the website, you are indicating your acceptance to be bound by these terms and conditions. The website may revise these terms and conditions at any time by updating this page. You should visit this page periodically to review the terms and conditions, to which you are bound.

4.  Terms of Use

1. Users may not use the website in order to transmit, distribute, store or destroy material:
   • in violation of any applicable law or regulation;
   • in a manner that will infringe the copyright, trademark, trade secret or other intellectual property rights of others or violate the privacy, publicity or other personal rights of others;
   • that is defamatory, obscene, threatening, abusive or hateful.
2. The following is prohibited with respect to the website:
   • Using any robot, spider, other automatic device or manual process to monitor or copy any part of the website;
   • Using any device, software or routine or the like to interfere or attempt to interfere with the proper working of the website.
   • Taking any action that imposes an unreasonable or disproportionately large load on the website infrastructure;
   • Copying, reproducing, altering, modifying, creating derivative works, or publicly displaying any content from the website without prior written permission;
   • Reverse assembling or otherwise attempting to discover any source code relating to the website or any tool therein, except to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; and
   • Attempting to access any area of the website to which access is not authorized.

5.  Copyright and Intellectual Property Rights

1. All content, trademarks and data on this website, including but not limited to, software, databases, text, graphics, icons, hyperlinks, private information, and designs are the property of or licensed to the website.
2. Users of this website are not granted a licence or any other right including without limitation under Copyright, Trade Mark, Patent or Intellectual Property Rights in/or to the content.

6. Privacy Policy & Cookie Policy

Please refer to our Privacy Policy and Cookie Policy for further information.

7.  Security

1. Users are prohibited from violating or attempting to violate the security of the Website, including, but without limitation:
   • accessing data not intended for such user or logging into a server or account which the user is not authorized to access;
   • attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization;
   • attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the website, overloading, "flooding", "spamming", "mail bombing" or "crashing";
   • sending unsolicited email, including promotions and/or advertising of products or services;
   • forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting;
   • deleting or revising any material posted by any other person or entity;
   • using any device, software or routine to interfere or attempt to interfere with the proper working of this website or any activity being conducted on this site.
2. Violations of system or network security may result in civil or criminal liability. We will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.

8.  Disclaimer

Whilst we have taken reasonable measures to ensure the integrity of the website and its contents, no warranty, whether express or implied, is given that the website will operate error-free or that any files, downloads or applications available via the website are free of viruses, trojans, bombs, time-locks or any other data, code or harmful mechanisms which has the ability to corrupt or affect the operation of your system.

In no event will we, and/or any third party contributors of material to the website be liable for any costs, expenses, losses and damages of any nature (whether direct, indirect, punitive, incidental, special or consequential) arising out of or in any way connected with your use of the website, your inability to use the website and/or the operational failure of the website, and whether or not such costs, expenses, losses and damages are based on contract, delict, strict liability or otherwise.

Insofar as the website contains links to any other internet websites, you acknowledge and agree that we do not have control over any such website and we shall therefore not be liable in any way for the contents of any such linked website, nor for any costs, expenses, losses or damages of any nature whatsoever arising from your access and/or use of any such website.

Whilst reasonable care is taken to ensure that the information contained on this website is accurate, we cannot guarantee its accuracy and we reserve the right to change the information on this website (including these terms and conditions) at any time without notice. You must check these terms and conditions for changes every time you intend to use this website. If you use this website after such updated or amended terms and conditions have been displayed on this website, you will be deemed to have accepted such updates or amendments.

9.  Severability

These Terms & Conditions constitute the entire agreement between you and us. Any failure by us to exercise or enforce any right or provision of these Terms & Conditions shall in no way constitute a waiver of such right or provision.

In the event that any term or condition is not fully enforceable or valid for any reason, such term(s) or condition(s) shall be severable from the remaining terms and conditions. The remaining terms and conditions shall not be affected by such unenforceability or invalidity and shall remain enforceable and applicable.

10.  Applicable Law

This website is hosted, controlled and managed in the Republic of South Africa, and thus, South African law and jurisdiction govern the use or inability to use this website, or any other matter related to this website.

11.  Disputes

All disputes in terms of this agreement or relating to the use or inability to use this web site shall be settled by arbitration conducted in English in terms of the rules of the South African Arbitration Foundation. Such arbitration shall be held in Cape Town, and the unsuccessful party shall pay all costs incurred by the successful party in attending and preparing for such arbitration.

12.  Auction

(Auction house refers to “Aguila Real Estate in association with Aguila Agri Prop” and the person conducting the auction will be referred to as the “Auctioneer”)

ANY PREVIOUS OFFER ON ANY OR ALL FIXED ASSETS IS NO LONGER APPLICABLE.

1. These rules comply with the provisions of section 45 of the Consumer Protection Act, 68 of 2008, which reads as follows: “45

(1) in this section, ‘auction’ includes a sale in execution of or pursuant to a court order, to the extent that the court 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 transaction.

(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 employee 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, or 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 auction will commence at the published time and will not be delayed allowing any specific person or more persons to take part in the auction.

 

3. The Auctioneer will only announce the reason for the auction if it is for any reason other than a voluntary sale of goods by the Seller (Owner).

 

4. The Seller (Owner) and / or his Agent and / or the Auctioneer may bid up to the reserve price of the Seller (Owner) but shall not be entitled to make a bid equal to or exceeding the reserve price.

 

5. The sale could be subject to a reserve price, but such will be specifically expressed by the Auctioneer.

 

6. All auction sales are non-suspensive and sold as is, in other words “voetstoots”.

 

7. No bidder can withdraw a “BID” at any stage.

 

8. All goods and livestock (hereafter referred to as the “assets”) are sold by Aguila Real Estate as Agent on behalf of the Seller, who authorises Aguila Real Estate to collect the purchase price from the Buyer and the Seller hereby cedes to Aguila Real Estate all the Seller’s rights, title and interest in and to its claim for payment of the purchase price against the Purchaser which session Aguila Real Estate hereby accepts. However, it remains, at all times, within Aguila Real Estate’s discretion to exercise this session, or not.

 

9. The bid excludes VAT and any other costs, excluding but not limited to buyer’s commission of 10% on loose assets. VAT and any other costs must be added to the bid price and paid by the Buyer, unless specifically stipulated otherwise by the Auctioneer or Aguila Real Estate. The bid price includes sellers commission (as agreed) on fixed assets.

 

10. All assets shall, immediately after the bid has been knocked down and accepted by the Seller, be deemed to have been delivered to the Buyer. Notwithstanding delivery, the Buyer shall not be entitled to remove any purchased assets, unless the total amount reflected on Aguila Real Estate’s invoice in respect of such assets has been paid in full.

 

11. Notwithstanding delivery, ownership of the purchased assets will not pass to the Buyer until the full purchase price plus interest, if any, is paid.

 

12. Subject to any reserve placed on any of the assets by the Seller, and the provisions of clauses 13 and 14 below, the Buyer at any sale shall be the highest bidder indicated by the Auctioneer by the fall of the hammer or by such other means as he may select.

 

13. The auction shall take place under the exclusive control of the Auctioneer. The Auctioneer reserves the right to regulate the bidding and to indicate the highest bidder. The Auctioneer / Agent / Seller reserves the right, in their sole discretion, to refuse the bid of any person. If the Auctioneer / Agent / Seller 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 assets may immediately be re-auctioned.

 

14. In the event of a dispute arising amongst the bidders and / or the Auctioneer, the assets in dispute shall, at the sole discretion of the Auctioneer, be re-auctioned.

 

15. If the bid price does not meet the reserve price and the seller does not accept the highest bid on the day of auction, the 7-day auction rule allows the agent to negotiate for the best price.

 

16. The highest bidder/s on the auction day will receive one chance to put his/her best price in writing via email within 7 calendar days.

 

17. The seller & auction house will be entitled to make the final call, whether to accept or reject the best bid if the reserve price has not been reached.

 

18. In the event of any error by the Auctioneer, the latter shall be entitled to correct such error upon discovery thereof.

 

19. All profit, loss or risk in the assets will pass to the Buyer once it has been delivered to the Buyer who shall at his own risk and expense remove it from the sale venue, subject to 8 above. The Buyer shall be responsible for all costs incurred by either the Seller or Aguila Real Estate until actual removal of the assets.

 

20. Should any contractor remove any assets from the sale venue on instruction of Aguila Real Estate, on behalf of the Buyer, the contractor will be deemed to be the contractor of the Buyer who accepts all costs and risks related to such removal.

 

21. The Seller warrants that there are no encumbrances on such assets, that the assets are the property of the Seller, and that the Seller is competent and legally entitled to dispose of the assets. The Seller warrants the Buyer that the assets are free of any patent or latent defects.

 

22. The Seller warrants Aguila Real Estate that the assets are free of any patent and latent defects and that any right or claim ceded to Aguila Real Estate 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.

 

23. The Buyer shall prior to the sale, ascertain whether there are any defects in the assets and any bid by a Buyer shall be considered as acceptance of the assets with any patent or latent defect in their condition at the time of the sale.

 

24. The Seller, who offers the assets 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 Seller and not against Aguila Real Estate and Auctioneer.

 

25. The Buyer shall not be entitled to withhold payment of the purchase price to Aguila Real Estate as a result of any possible or ending claim that he may have against the Seller on the grounds of misrepresentation or for any other reason whatsoever.

 

26. The purchase price of the movable property is payable by the Buyer to the Seller by EFT payment (to the discretion of Aguila Real Estate in association with Aguila Agri Prop) or by bank-guaranteed cheque on the date of sale (“the payment date”) unless other payment terms and / or means are agreed upon between Aguila Real Estate and the Buyer. The auction house reserves the right to refuse any method or means of payment.

 

27. Any check and cash payments are further subject to cash or any other handling fee.

 

28. If the property is being conducted as a farming business and is sold as a going concern and is accordingly in terms of Section 11(1)(e) of the Value Added Tax Act, subject to value added tax at the zero rate. Both parties must be registered vendors in terms of the Value Added Tax Act If the sale of the property is, for whatever reason not subject to value added tax at the zero rate, the purchaser will pay the value added tax to the seller, in addition to the purchase price set out in paragraph 1 above, on date of registration of the transfer alternatively on demand.

 

29. The bid price (plus Value-Added Tax “VAT”, if applicable) includes sellers commission as agreed, and constitutes the purchase price in respect of the immovable property shall be paid as follows: -

29.1 the balance of the purchase price shall be paid by the Purchaser by means of EFT payment against registration of transfer of the property into the name of the Purchaser ("the transfer date").

29.1.1 the Purchaser shall furnish the Seller's conveyancers within 8 (EIGHT) WEEKS of signature hereof by the Seller ("the signature date"), with a guarantee by a bank or financial institution approved by the Seller, payable free of exchange, for payment of the balance of the purchase price on the transfer date.

 

30. The auctioneer shall have the right to re-auction any given property if the successful bidder does not pay his deposit in the agreed time.

 

31. The successful bidder cannot occupy the property prior to registration without special arrangement from the sell.

 

32. In the event of any Payment Terms Agreement between Aguila Real Estate and the Buyer, the following shall apply:

32.1 Pre-qualified buyers can apply for credit as defined in Article 8 of the National Credit Act, 34 of 2005. Applications will be considered by Aguila Real Estate.

32.2 In the event of any conflict between the contents of this document and the Conditions of Sale, the provisions of the Conditions of Sale Agreement shall prevail.

 

33. PROTECTION OF PERSONAL INFORMATION ACT (POPI Act) The Seller and Purchaser each hereby consent to the processing (as defined in POPIA which includes, collection, retention, and transfer) by Aguila Real Estate of their personal information (which includes contact details, proof of address and identification numbers) as may be required to give effect to or otherwise implement the provisions of this Auction and the transactions contemplated herein. This will include, where relevant, providing/requesting personal information to/from financial institutions, mortgage originators, attorneys, and other services providers such as those required to obtain compliance certificates.

 

34. Anyone that intends to bid online (Buyer) must register online his identity on the bidder’s record 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 and the person must accept the terms and conditions. The prospective Buyer must email a copy of his identity document and proof of residence to info@aguilarealestate.co.za or WhatsApp to 064 548 5216.

 

35. Any person who registers online on behalf of a principal (i.e. a natural person) must email a written signed power of attorney accompanied by a copy of both parties ID documents and proof of residence to info@aguilarealestate.co.za or WhatsApp to 064 548 6216, failure of which, he/she will be personally liable for payment of any purchase made by him/her. The person bidding on behalf of, or who registers online on behalf of the Purchaser pursuant to a successful bid hereby binds himself personally as co-principal debtor with the Buyer for payment of the purchase price and personally undertakes to comply with all the obligations of the Buyer under these rules of auction.

 

36. A person who registers for the auction, to bid on behalf of another person (i.e. a legal entity) must email a signed letter of authority that expressly authorises him/her to bid or register on behalf of that entity, accompanied by a copy of his/her ID and proof of residence. Copies of ID’s of all the Directors / Trustees / Members of the company and proof of residence of the company, failure of which, he/she will be personally liable for payment of any purchase made by him/her. 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, authorising him/her to bid on behalf of the entity. The person bidding on behalf of or registers online 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 al the obligations of the Buyer under these rules of auction.

 

37. In the event where a Buyer allows another person to purchase on his/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 Aguila Real Estate and the Buyer will have no claim to any of the assets allegedly purchased by him/her.

 

38. A refundable deposit of R20 000 will be payable on request at registration if applicable.

 

39. Until all amounts owing by the Buyer have been paid in full, the Buyer hereby:

39.1 irrevocably undertakes to identify the purchased assets in such a manner that he/she can at any time identify and indicate the assets deemed to be the property of, and pledged to, Aguila Real Estate.

39.2 grants Aguila Real Estate at all reasonable time access to the premises where the assets are stored or kept for the purposes of perfecting its pledge and exercising any other rights in terms of these rules of auction.

 

40. The Buyer and the Seller hereby consent to the jurisdiction of the Magistrate’s Court in terms of section 45 of Act 32 of 1944, as amended, for any action instituted by Aguila Real Estate against the Buyer although Aguila Real Estate is entitled to institute proceedings in any competent court.

 

41. A certificate by any authorised person from Aguila Real Estate, whose appointment and authority shall not be necessary to prove, shall be prima facie proof of the amount owing by the Buyer to the Seller or Aguila Real Estate.

 

42. Any indulgence granted by Aguila Real Estate to the Buyer, or the Seller will not prejudice the rights of Aguila Real Estate in terms of these rules of auction and such indulgence will not constitute an amendment or waiver or novation of these rules of auction.

 

43. The entries made in the Auction House’s auction roll shall be prima facie evidence of the transaction and shall be binding on the Seller and the Buyer.

 

44. The bidder’s record and the vendor or vendor roll will be made available for inspection within a reasonable time after the auction, at the office of Aguila Real Estate during normal business hours free of charge.

 

45. The Attorney / Aguila Real Estate / Seller has a trust account / account into which all moneys will be paid for the benefit of the Seller minus the agreed commission.

 

46. Any assets entered or offered for sale are subject to payment by the Seller / Buyer of the agreed commission, or in absence of an agreement, the usual commission by the Seller / Buyer to Aguila Real Estate at the rate customarily charged by Aguila Real Estate from time to time, whether the assets are sold at the auction or thereafter, or at any time thereafter by private treaty. Unless otherwise agreed in writing, commission by the Seller / Buyer upon the fall of the hammer or upon the entering into of a private treaty involving the Seller’s said assets, whichever date is the earlier and notwithstanding any breach on the part of the Seller / Buyer.

 

47. Every bid shall constitute an offer to purchase the assets for the amount bid, which the Seller, Aguila Real Estate or Auctioneer may accept or reject in their absolute discretion. The Seller, Aguila Real Estate and Auctioneer are entitled, in their absolute discretion to withdraw the assets from the sale prior to acceptance by the Seller.

 

48. If no bid equals or exceeds the reserve price, if any, the assets may be withdrawn from the auction.

 

49. The Auctioneer and Aguila Real Estate accepts no liability for any withdrawal of assets from the sale.

 

50. 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 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.

 

51. The highest bidder in respect of immovable property, being the Buyer, shall sign the conditions of sale immediately after the fall of the hammer.

 

52. The Buyer’s offer in respect of immovable property shall only be deemed to have been accepted when the Seller or his Agent or whichever may be applicable, has signed the conditions of sale on behalf of the Seller in the space provided at the end of the conditions of sale.

 

53. In the event of the sale requiring the consent of any statutory authority or any court of law, then this auction shall be subject to the granting of such consent.

 

54. The Buyer and Seller herby consent to the payment of attorney-and-client costs in the event of any legal action being instituted against them by Aguila Real Estate.

 

55. Any agreement contrary to these rules shall not be binding, unless reduced to writing and signed by all relevant parties.

 

56. If any clause or terms of these rules should be invalid, unenforceable, and illegal, then the remaining terms and provisions of these rules shall be deemed to be severable therefrom and shall continue in full force and effect unless such invalidity, unenforceable or illegality goes to the root of these rules.

 

57. Should the Buyer default by refusing or otherwise failing to pay the purchase price on fixed assets within 14 days of the due date, or on date of auction for movable assets Aguila Real Estate shall be entitled to:

57.1 claim the prescribed mora interest from the Buyer from date of purchase to date of payment; and / or

57.2 repossess the assets to resell same at the risk of the defaulting Buyer who shall remain 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

57.3 institute legal proceedings for the payment of any amount owing or for the return of the assets in which event the provisions of clause 46.2 will apply and/or

57.4 recover the Aguila Real Estate’s legal costs calculated at the attorney-and-client tariff as well as collection, tracing, storage and transport costs, commission as per Condition of Sale and/or

57.5 retain in pledge any assets or other property in the possession of Aguila Real Estate belonging to either the Buyer or the Seller as security for the fulfilment of any obligation owed to the relevant party or Aguila Real Estate.

 

58. Aguila Real Estate reserves the right to amend these rules of auction in writing.

 

59. By entering a bid any prospective Buyer binds himself or herself to these rules of auction.

 

60. The Purchaser and Seller indemnify and hold harmless Aguila Real Estate and the Auctioneer in respect of any claim of whatsoever nature, including but not limited to death, loss, illness, injuries, or damages of whatsoever nature and howsoever arising, which the Purchaser or Seller may have against Aguila Real Estate and the Auctioneer arising out of or in connection with the auction.