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[2010] ZAGPPHC 589
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Viviers v Impact Estates Centurion (Pty) Limited (A750/2007) [2010] ZAGPPHC 589 (2 February 2010)
THE
HI
GH COURT OF SOUTH AFRICA
NORTH GAUTENG
PRETORIA
CASE NO: A750/2007
DATE: 2 FEBRUARY
2010
BEULAH VIVIERS
APPELLANT
V
IMPACT ESTATES
CENTURION (PTY) LIMITED
RESPONDENT
APPEAL FROM
MAGISTRATES’ COURT
CORAM SERITI J
SAPIRE AJ
Judgment
Sapire, AJ:
The respondent which
carries on the business of an estate agent sued the appellant in the
Magistrates Court claiming commission
in respect of a sale of
property. The respondent further alleged that it was the effective
cause of the sale having originally
let the property to a party who
subsequently purchased it. The purchase took place approximately
months after the commencement
of the lease.
The lease itself
contained a clause that should the lessee later purchase the property
the respondent would be entitled to the appropriate
commission.
In the Magistrates
Court the appellant unsuccessfully raised the point that the
respondent had not proved itself to be in compliance
with the
provisions of section 34A and 34B read with sections 1 and 26 of the
Estate Agent’s Affairs Act, No 112 of 1976and
thus not entitled
to the commission claimed.
These sections read
26 Prohibition of
rendering of services as estate agent in certain circumstances
No person shall
perform any act as an estate agent unless a valid fidelity fund
certificate has been issued to him or her and to
every person
employed by him or her as an estate agent and, if such person is-
(a) a company, to
every director of that company; or
(b) a close
corporation, to every member referred to in paragraph (b) of the
definition of 'estate agent' of that corporation.
34A Estate agent
not entitled to remuneration in certain circumstances
(1) No estate agent
shall be entitled to any remuneration or other payment in respect of
or arising from the performance of any
act referred to in
subparagraph (i), (ii), (iii) or (iv) of paragraph (a) of the
definition of 'estate agent’, unless at
the time of the
performance of the act a valid fidelity fund certificate has been
issued-
(a) to such estate
agent; and
(b) if such estate
agent is a company, to eveiy director of such company or, if such
estate agent is a close corporation, to eveiy
member referred to in
paragraph (b) of the definition of 'estate agent' of such
corporation.
(2) No person
referred to in paragraph (c) (ii) of the definition of 'estate
agent', and no estate agent who employs such person,
shall be
entitled to any remuneration or other payment in respect of or
arising from the performance by such person of any act
referred to in
that paragraph, unless at the time of the performance of the act a
valid fidelity fund certificate has been issued
to such person.
34B Prohibition
of completion of documents by certain estate agents
(1) An estate agent
who has not complied with the prescribed standard of training may not
in his or her capacity as an estate agent
draft or complete any
document or clause in a document-
(a) Conferring any
mandate on any estate agent to perform any act referred to in
paragraph (a) of the definition of'estate agent';
or
(b) relating to the
sale or lease of immovable property.
(2) Any estate agent
who contravenes subsection (1) shall not be entitled to any payment,
remuneration or damages in respect of
or by reason of any document
contemplated in that subsection or for bringing about the transaction
or agreement embodied in that
document.
Although there was
testimony that a close corporation from which the Plaintiff had
earlier converted to its present status a a private
company, did in
fact have the fidelity certificates which are required the
certificates themselves were never proved in evidence.
Nor for that
matter was the conversion proved by the best evidence. Fidelity
certificates were mentioned by the plaintiff in its
discovery
affidavit but nothing was produced to establish compliance with the
provisions of the act so as to entitle the Respondent
to have
succeeded in its claim for commission..
It was for the
Respondent to have established a case that it was entitled to the
relief claimed having regard to the provisions
of section 34A of the
Act. To do this the fidelity certificate of the company and every
director should have been in evidence.
In default thereof the
Respondent should not have succeeded.
It is also clear
that the individual who handled the transactions on behalf of the
respondent was not an estate agent himself but
merely a learner, or
trainee. The principal who was a director of the respondent admitted
that he had nothing to do with the transaction
personally himself.
The provisions of section 34B exclude any claim for commission in
these circumstances.
The points so raised
by the appellant should have been answered by the Magistrate in the
appellant’s favour. The magistrate
however, erred in this
respect, ruled in the respondent’s favour, and granted judgment
for the amount claimed with costs.
This judgment must
be reversed.
Appellant in
addition asked for the costs of a postponement of the trial on the 9
h
of February 2007. The magistrate had ordered that the
appellant was to pay such costs as had been reserved on that
occasion. His
reasons for doing so are obscure. The postponement was
clearly caused by the respondent which had not timeously made proper
discovery.
This decision too is
to be reversed.
The appeal should
succeed, and the order of the magistrate should be set aside, to be
substituted by
“
The
Plaintiff’s claim is dismissed with costs including the costs
of the postponement on the 9
th
of February 2007.”
SAPIRE,
A
J
1 agree and it is so
ordered
SERITI, J