Strauss & co - 13 February 2016, Cape Town

A. DEFINITIONS: 1. ln these conditions of business, headnotes are for convenience only and shall not be used in their interpretation, any expression which denotes any gender shall include the other gender, 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: i. “auction” means any private treaty or auction sale at which a lot is offered for sale ii. “The CWA” means The Afrasia Bank Cape Wine Auction iii. “auctioneer” means the representative of The CWA conducting an auction; iv. “bidder” means any person making, attempting or considering to make a bid or offer to buy a lot at an auction, or private treaty sale; v. “Buyer” means the bidder who makes the bid or offer for any lot that is finally accepted by the auctioneer (after determination by the auctioneer of any dispute that may exist in respect thereof) 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; vi. “Buyer’s premium” means the premium payable(if applicable) by the Buyer of a lot to The CWA on the sale of that lot, calculated on the hammer price of that lot at the relevant current rates; vii. “catalogue” means any advertisement, brochure, estimate, price- list, condition report and other publication (in whatever medium, electronically or otherwise) published by The CWA in respect of any auction; viii. “current rates” means The CWA’s current rates of commission, premiums and other amounts payable to The CWA for the time being, together with VAT thereon (if any), all as published by The CWA (whether in a catalogue or otherwise) or as agreed between a prospective Buyer or Auctioneer (as the case may be) and The CWA; ix. a “deliberate forgery” means an imitation made with the intention of deceiving as to authorship, origin, date, age, period, culture or source, which is not shown to be such in the description in the catalogue and which at the date of the sale had a value materially less than it would have had if it had been in accordance with that description and includes any misrepresentation made with intention of deceiving as to authorship, origin, date, age, period, culture or source; x. “hammer price” means the bid or offer made by the Buyer for any lot that is finally accepted by the auctioneer (after determination by the auctioneer of any dispute that may exist in respect thereof) at a sale of that lot, together with VAT thereon (if any); xi. “lot” means any item or items to be offered for sale by The CWA at an auction or private treaty sale; xii. “prime rate” means the publicly quoted base rate of Interest as being its prime overdraft rate; xiii. “private treaty” means the sale of any lot other than by auction sale at a price privately agreed on by the Buyer and Seller; xiv. “purchase price” means the hammer price of any lot at a sale thereof, plus the applicable Buyer’s premium for that lot (if applicable), plus all recoverable expenses for which the Buyer is liable in respect of that lot; xv. “recoverable expenses” includes all fees, taxes (including VAT if applicable), charges, and expenses incurred by The CWA in relation to any lot that The CWA is entitled to recover from a Buyer or Seller; xvi. “reserve” means the confidential minimum hammer price (if any) at which a lot may be sold at an auction as agreed between the Buyer of that lot and The CWA in writing; xvii. “sale proceeds” means the amount due to The CWA by the Buyer of a lot in respect of the sale of that lot, made up of the hammer price of the lot, less the applicable Auctioneer’s commission (if applicable) for that lot, less all recoverable expenses for which the Seller is liable in respect of that lot and any other amounts due to The CWA by the Buyer in whatever capacity and howsoever arising (if applicable); xviii. “sale” means the sale of any lot at an auction, whether done by private treaty or auction sale, and “sell” and “sold” shall have corresponding meanings; xix. “Seller” means the person named as the Seller of any lot, being The CWA offers the lot for sale; xx. “Auctioneer’s commission” means the commission payable by the Buyer to The CWA on the sale of a lot that is calculated on the hammer price of that lot at the relevant current rate (if applicable); xxi. “VAT” means value added tax levied in terms of the Value Added Tax Act, 1991. B. GENERAL TERMS AND RULES OF AUCTION Every auction and/or sale shall be governed by these terms, section 45 of the Consumer Protection Act 68 of 2008 (“the Act”) and the rules of auction and in accordance with the laws of South Africa. The provisions of section 45 reads as follows: 1. Auctions ln this section, “auction” includes a sale in execution of or pursuant to a court order, to the extent that the order contemplates that the sale is to be conducted by an auction. i. 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. ii. 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 bidmay be retracted. iii. Notice must be given in advance that a sale by auction is subject to: i. A reserved or upset price; or ii. A right to bid by or on behalf of the owner, 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. iv. 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: i. The auctioneermust not bid or employ any person to bid at the sale; ii. The auctioneer must not knowingly accept any bid from a person contemplated in paragraph A.1.5 (a); and iii. The consumer may approach a court to declare the transaction fraudulent, if this subsection has been violated. v. The Minister may prescribe requirements to be complied with by an auctioneer, or different categories of auctioneer, in respect of: i. The conduct of an auction; ii. The records to be maintained with respect to property placed for auction; and iii. The sale of any such property by auction. 2. The rules of the auction are those promulgated in terms of the Regulations promulgated by the Minister of Trade and Industry dated 23 November 2010 under Government Gazette No. 33818 on 1 April 2011 and any subsequent amendment and/or variation to the rules and these terms. 3. The auctioneer is the agent for the CWA. 4. These conditions of Purchase, as amended by addenda or oral announcements during the sale, constitute the entire terms and conditions of seller with respect to the sale and purchase of auction lots listed herein. By bidding, the bidder agrees to be bound by these Conditions of Purchase. 5. Seller does not warrant or represent, expressly denies responsibility for, and in no event shall be liable for, the accuracy of the description of the wines (or other items) offered, or the correctness of the catalogue, including, but not limited to: the origin, rarity, age, genuineness, quantity, aging potential, present and future quality or condition of wines offered. 6. All bids are per Iot as announced by the auctioneer, listed in the catalogue. 7. All statements by seller are merely statements of opinion and are not to be relied upon by prospective purchasers as warranties or representations of fact, and prospective bidders, by so bidding, acknowledge that they have inspected the wines to their satisfaction and bid only as a result of their own inspection and opinion. AII wine is sold on strictly a “Voetstoots” basis. 8. Auctioneer may, at any time prior to the close of any auction (or fall of the gavel in a live auction), withdraw the lot from sale. 9. Auctioneer shall have the right to reject any bid at any time prior to the close of any auction (or fall of the gavel in a live auction). Bids will be accepted only from registered bidders. 10. ln the event of there being a discrepancy between the rules and the terms herein, the rules shall be operative and overriding. 11. Every bid constitutes an offer, open for acceptance by the Auctioneer and such acceptance shall be signified by the fall of the hammer, or by the acceptance of the offer by The CWA in the event of a private sale. 12. Buyers are solely responsible to satisfy themselves prior to auction/ private treaty sale as to the condition of each lot and should exercise and rely on their own judgement as to whether the lot accords with the description or not. 13. Any lot which proves to be a ‘deliberate forgery’ (which will only be the case if an expert appointed by The CWA for such purposes confirms same in writing) may be returned by the Buyer (as his sole remedy hereunder or at law) to The CWA within 21 day of the date of auction in the same condition in which it was at the time of the auction, accompanied by a statement of defects, the number of the lot, and the date of the auction at which it was purchased. lf The CWA is satisfied that the item is a ‘deliberate forgery’ and that the Buyer has and is able to transfer a good and marketable title to the lot, free from any third-party claims, the sale will be set aside and any amount paid in respect of the lot will be refunded, subject to the express condition that the Buyer will have no rights or claims against The CWA if: i. the description in the catalogue at the date of the sale was in accordance with the then generaly accepted opinion of scholars and experts or fairly indicated that there was conflict of such opinion; or ii. the only method of establishing at the date of publication of the catalogue that the lot was a deliberate forgery was by means of a scientific process not generally accepted for use until after publication of the catalogue, or by a process which was unreasonably expensive or impractical; iii. Buyer’s claiming under this condition will be limited to any amount paid in respect of the lot and will not extend to any loss or damage of whatsoever nature suffered or expense incurred by him/her; iv. the benefit of this condition will not be assignable and will rest solely and exclusively in the Buyer who, for the purpose of this condition, will be and only be the person to whom the original invoice is made out by The CWA in respect of the lot sold. The CWA will have the sole, exclusive and absolute right, at its discretion to refuse admission to any person to its premises or any other premises at which such auction is to be conducted. 14. The CWA has the sole and absolute discretion without having to give any reasons therefore, to refuse any bid, withdraw or reoffer lots for auction TERMS AND CONDITIONS OF SALE 117