Roger Green starts by restating James v Liquidators of the Amsterdam Township Company 1903 TS 653 in which it was held that in a contract for the sale of land, under the common law, a seller is entitled to nominate the conveyancer even if the purchaser pays for the costs of the transfer. This is in contradistinction to the Natal case of Kothandan v Arbuthnot 1920 NPD 223 where the court held that the existing custom in Natal was for the purchaser to nominate the conveyancer.
The author continues by showing that this custom has effectively been abrogated by disuse, the beginnings of which were ironically noted in Arbuthnot. Printed sale agreement forms attest to this. Notwithstanding this state of affairs, he notes that some conveyancers still try to rely on Arbuthnot, despite some compelling reasons - which he discusses - why in most instances the seller should nominate the conveyancer.
These reasons include the following:
- The party more likely to delay the transfer or breach in terms of the agreement is the purchaser.
- It is easier for the seller's conveyancer to ensure that the purchase price of the property be properly secured.
- Until transfer, the property is the seller's, therefore it is logical that his own conveyancer protect his interests.
- The argument might hold that since the purchaser pays the transfer duty he should nominate the conveyancer, but this is not so when the seller pays VAT.
- In transfers from developments such as townships or sectional title schemes, the seller's conveyancer is in the best position to coordinate the sequence of transactions.
- In auction cases the conveyancer is nominated by the seller.
The letter ends with instances of where it is preferable for the purchaser's conveyancer to act, and a restatement of the duty of care which a conveyancer owes to both the seller and the purchaser.