What a Conveyancer Does

What is a conveyancer?

A conveyancer is not a separate profession from an attorney; it is an additional qualification held by an attorney. To become a conveyancer in South Africa a candidate must already be an admitted attorney, pass the conveyancing examination set by the Legal Practice Council under section 26 of the Legal Practice Act 28 of 2014, and be enrolled as a conveyancer at a Provincial Division of the High Court. Once enrolled, the conveyancer’s name is listed on the roll of conveyancers, and only then may they sign the preparation certificate on a deed of transfer or a mortgage bond.

The statutory monopoly flows from the Deeds Registries Act 47 of 1937. Section 15 of the Act requires every deed of transfer, mortgage bond, and notarial deed lodged at the Deeds Office to be “prepared” by a conveyancer who signs a preparation certificate accepting personal responsibility for the deed’s correctness. The Registrar of Deeds will not accept any deed for registration without a conveyancer’s signature on that certificate. In short: a conveyancer is the only professional the State permits to move ownership of land from one person to another.

Who appoints the conveyancer?

By long-standing South African convention, the seller appoints the transferring attorney. The rationale is practical — the seller is the party bound to transfer the property on registration and therefore bears the risk if transfer fails. The buyer, meanwhile, pays the conveyancer’s fee even though the buyer did not make the appointment. This arrangement is sometimes criticised, but the fee follows the attorney tariff guideline issued under the Legal Practice Act and does not vary with who chose the firm — so the buyer suffers no financial disadvantage from the seller’s choice.

Three common variations arise. First, in the sale of a deceased estate property, the executor nominates the conveyancer, not the heir. Second, in the sale of a trust-owned property, the trustees (acting on a unanimous or majority resolution per the trust deed) nominate. Third, estate agents often recommend a firm they work with routinely. Recommendations are common and usually sensible — an agent who has seen a firm close ten transfers knows the firm’s rhythm — but the nomination must still be recorded in the Offer to Purchase (OTP) and signed by the seller.

If the OTP is silent on who the conveyancer is, default common-law rules place the nomination with the seller. If the OTP names the firm, the parties are bound to that firm unless they agree in writing to change it. Changing conveyancer mid-transfer is always possible, but it triggers a fresh FICA and re-opening cost that few parties enjoy.

Core duties during a transfer

Once instructed, the conveyancer carries out a fixed sequence of duties. Some are visible to the buyer and seller; many are not. The core duties — each of which can stop a transfer in its tracks if skipped or bungled — are:

• FICA compliance. As an accountable institution under the Financial Intelligence Centre Act 38 of 2001, the conveyancer must verify the identity, residential address and source of funds of every party, plus the ultimate beneficial owners of any trust or company in the chain.
• Deeds Office search and drafting. The conveyancer pulls the existing title deed, verifies the owner and any interdicts or caveats, and drafts the new deed of transfer and any supporting documents (power of attorney to pass transfer, consent to transfer, affidavits as to marital status, and so on).
• Rates and levy clearance. The conveyancer applies for the municipal rates clearance certificate under section 118 of the Local Government: Municipal Systems Act, and — if applicable — the levy clearance certificate from the body corporate or homeowners’ association.
• SARS transfer duty. The conveyancer prepares the transfer duty declaration on SARS e-Filing, collects duty from the buyer into the trust account, pays SARS, and obtains the transfer duty receipt without which the Deeds Office will not register.
• Three-way coordination. In a bonded transfer the conveyancer liaises with the bond registration attorney (appointed by the buyer’s bank) and the bond cancellation attorney (appointed by the seller’s existing bank) so that all three deeds lodge on the same day.
• Lodgement and registration. The conveyancer lodges the deeds at the Deeds Office, responds to any examiner queries (“notes”), and attends the registration itself.
• Post-registration payouts. On the afternoon of registration the conveyancer pays the net purchase price to the seller, the bond cancellation bank its settlement figure, the estate agent its commission, the rates authority its pro-rated claim, and the firm’s own fee.

Every one of these duties runs through the conveyancing trust account — a separately-held, audited, Fidelity-Fund-protected bank account maintained in terms of Part VIII of the Legal Practice Act. The trust account is what lets the parties transact safely: the buyer’s money never sits with the seller until ownership has passed, and the seller’s bond cancellation figure never leaves trust until the cancellation is registered.

Independence and fiduciary duty

A conveyancer is in an unusual position. Although appointed by the seller and paid by the buyer, the conveyancer does not strictly act for either party in the adversarial sense an advocate might. Instead the conveyancer owes a fiduciary duty to both parties to conclude the transfer lawfully, accurately and promptly. The High Court in Joint Stock Company Aeroflot v Berezovsky and in subsequent Legal Practice Council disciplinary rulings has repeatedly held that a conveyancer’s independence is non-negotiable — the conveyancer is an officer of the court first, and only then an agent of the parties.

In practice this means that a conveyancer who spots a defect — an unpaid rates bill, an undisclosed existing interdict, a director who has not been properly authorised — must flag it to both parties, even if that disclosure disadvantages the party who made the appointment. It also means the conveyancer cannot act as advocate for either side in a later dispute arising from the transfer. Where a genuine conflict arises, the conveyancer withdraws and the parties instruct new attorneys.

Fiduciary duty is reinforced by the conveyancing trust account. Funds held in trust are ring-fenced by statute, ear-marked client by client, independently audited, and backed by the Legal Practitioners’ Fidelity Fund. The Fidelity Fund compensates clients for losses caused by the theft of trust money by a practitioner — a statutory safety net that has no direct equivalent in most other professional services in South Africa.

Transferring attorney vs bond attorney vs cancellation attorney

A bonded residential transfer involves three separate conveyancing firms, each appointed by a different party. First-time buyers often assume there is just one “conveyancer” on a deal; there are usually three, and understanding who does what prevents a lot of confusion about costs and timelines.

The three firms must ultimately lodge on the same day at the Deeds Office, their deeds barcode-linked so that the registry cannot register one without the others. We cover this choreography in detail in our guide to the property transfer process.

Regulation: Legal Practice Act 28 of 2014

Since the Legal Practice Act 28 of 2014 came into force on 1 November 2018, every attorney and conveyancer in South Africa is regulated by the Legal Practice Council (LPC) — a single statutory body that replaced the previous provincial law societies. The LPC maintains the roll of legal practitioners, administers the conveyancing examination, investigates complaints, prosecutes misconduct, and controls the issue of the annual Fidelity Fund Certificate (FFC) without which no attorney may practise for their own account or operate a trust account.

A conveyancer must therefore hold, at all times, three concurrent authorisations:

1. Admission and enrolment as a legal practitioner (attorney) under section 24 of the Legal Practice Act.
2. Enrolment as a conveyancer at the High Court under section 26 of the Legal Practice Act, having passed the conveyancing examination.
3. A current Fidelity Fund Certificate for the calendar year, confirming the practitioner has no unresolved trust account deficiencies and has paid their Fidelity Fund contribution.

A client can and should verify any conveyancer’s status by requesting their FFC number and looking the practitioner up on the LPC roll at lpc.org.za. A practitioner whose name does not appear on the roll, or whose FFC is not current, cannot lawfully act in your transfer — and deeds they purport to sign will be rejected by the Deeds Office.

Common failures a good conveyancer prevents

Most of the value a conveyancer adds is invisible — problems that never surfaced because the conveyancer caught them in week one. The recurring failures we see in transfers that were run poorly or by under-qualified staff are:

• Expired rates clearance certificates. A section 118 clearance is valid for only 60 days from date of issue. A conveyancer who does not watch that clock has to re-apply — adding weeks — and may have to re-pay the rates if the municipality’s figures have changed.
• FICA gaps. Missing proof of address, a non-current ID, or a director who has not been verified will stop the transfer at the Deeds Office or, worse, trigger an FIC reporting obligation with compliance consequences.
• OTP defects. A property description that does not match the title deed, an unsigned suspensive condition, or an ambiguous reference to which party pays which cost — each of these can force a re-draft and re-signature, which in a transfer where one party has emigrated can take weeks.
• Double registrations. Rare, but catastrophic — the same property is mistakenly transferred twice because two conveyancers were instructed on parallel deals and neither did a fresh Deeds Office search before drafting.
• Section 118(3) municipal debt. Some municipalities assert that historic debts older than two years attach to the property itself and survive transfer — a disputed interpretation under section 118(3). A competent conveyancer raises this early and either extracts a firm figure from the municipality or includes a protective contractual clause in the OTP.
• Trust account theft. A rare but real risk. A conveyancer who is struck off or loses their FFC may have an “occupied” trust account the LPC eventually ring-fences, but in the interim clients’ money can go missing. The Fidelity Fund remedies the loss — but only if the practitioner was actually a practising conveyancer at the relevant time. Verifying the FFC is therefore not paranoia.

Frequently asked questions