Whether failure to disclose professional qualification and category of registration to a client amounts to misrepresentation or not
Advocate Toto Fiduli,
SACAP has, over the years, seen a surge in the number of complaints from the public about misrepresentations of professional qualifications and / or categories of registration. This conduct manifests itself in cases where some registered persons promote themselves as Professional Architects whereas they are registered in lower categories of registrations or where such registered persons fail to disclose to a client their professional qualification and category of registration.The misrepresentation is defined as a false or incorrect statement that is made to a contracting party which consequently induces the contracting party to conclude a contract. A conduct constitutes misrepresentation if:
a) It is material in that the other party would not have entered into a contract had it not been due to the misrepresentation
b) There is a failure to disclose a material fact to the other contracting party when there is a legal duty to do so.
This was confirmed in the matter of McCann v Goodall Group Operations (Pty) Ltd 1995 (2) SA 718 (C). Furthermore, in UMSO Construction Pty Ltd vs Tau Pele and others, the court indicated silence and failure to disclose a material fact may in certain circumstances amount to misrepresentation. Registered persons have a legal duty to disclose their professional qualification and category of registration to their clients from the onset. Thus, it is incumbent upon all registered persons to disclose their professional qualification and category of registration prior to undertaking to perform architectural work for the public. Misrepresentation in the architectural profession arises where:
a) A registered person makes a false statement about the professional qualification and the category of registration.
b) There is a non-disclosure of professional qualifications and category of registration to a client.
Often members of the public argue that they would not have appointed a registered person if they had known the professional qualification and the category of registration. This means that a client relies on the information provided by a registered person to make an informed decision before contracting for the provision of architectural services. A client involuntarily relies on a registered person to make a full disclosure pertaining to professional qualification and the category of registration. In most cases, this information is within the exclusive knowledge of a registered person. Members of the public may not differentiate between the various categories of registration, professional qualifications and the level of competence attached to the registration category. In order to redress the public’s knowledge deficit relative to a professional’s knowledge and expertise, a registered person has a duty to disclose professional qualification and the category of registration.
Naturally, the objective of misrepresentation, non-disclosure or overstating professional qualifications or registration category is to secure work, job offers and other professional recognition. The temptation to misrepresent or overstate the qualifications is on the rise due to minimal work in the profession. This is aggravated by a current economic climate coupled with Covid-19 pandemic impact on the built environment.
Rule 1.5 of the Code of Conduct is meant to prevent the improper conduct. It provides that a “registered person shall not misrepresent, or knowingly permit misrepresentation of their own or any other persons’ academic or professional qualification or competency, nor exaggerate their degree of responsibility for any architectural work”.
The misconduct cuts across various rules in the Code of Conduct. Registered persons are called to act with honesty and integrity at all times when performing architectural work. Where a registered person makes false statements or overstates his or her professional qualification and / or category of registration, it goes beyond a mere exaggeration, but an intentional deception and gross dishonesty. This conduct will certainly have a negative impact on the professionalism and the reputation of the profession.
The misconduct poses a serious risk to the built environment and the public due to the fact that clients may end up appointing registered persons who may not be competent to perform the work. This may result in inadequate design details or design deficiencies, inadequate specifications, and poor workmanship. Rectifying design deficiencies and poor workmanship to ensure that a structure meets the minimum technical requirements, and structural integrity may be very costly.
The only way to address these challenges is to ensure that registered persons disclose upfront their professional qualifications or registration category and confirm that they are competent to perform the work for the client in line with the Identification of Work.