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[2008] ZASCA 38
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Taljaard v T L Botha Properties (666/06) [2008] ZASCA 38; 2008 (6) SA 207 (SCA); [2008] 3 All SA 453 (SCA) (28 March 2008)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
CASE NO: 666/06
In the
matter between :
JEAN
JACQUES TALJAARD ...
Appellant
and
T L
BOTHA PROPERTIES
... Respondent
__________________________________________________________________________
Before: CAMERON, NUGENT, CLOETE, PONNAN JJA & SNYDERS AJA
Heard: 17 MARCH 2008
Delivered: 28 MARCH 2008
Summary: Estate Agency Affairs Act 112 of 1976 â section 34A â
estate agent not entitled to remuneration if functions performed
in
absence of fidelity fund certificate â client who pays remuneration
in such circumstances not entitled to claim its return.
Neutral citation: Taljaard v Botha Properties (666/06)
[2008]
ZASCA 38
(28 March 2008)
__________________________________________________________________________
J U D G M E N T
__________________________________________________________________________
NUGENT JA
NUGENT JA
:
[1] The respondent is an estate agent. In April 2004, in
performance of a mandate given to it by the appellant, the respondent
brought
about the sale by the appellant of certain fixed property for
the sum of R630 000. It had been agreed between the parties that
in return for performing its mandate the respondent would be paid
R30 000 by the appellant and the sum was duly paid. At the
time
the agreement of mandate was concluded (and the mandate was
performed) â unbeknown to the appellant at the time â a fidelity
fund certificate had not been issued to the respondent under the
Estate Agency Affairs Act 112 of 1976. Alleging that the agreement
of
mandate was for that reason invalid the respondent claimed return of
the remuneration. The claim failed in the magistratesâ
court, and
failed again on appeal to the High Court at Cape Town (Fourie J, with
whom Traverso DJP concurred). This further appeal
is before us with
the leave of this court.
[2] Although s 26 of the Act has been amended and
substituted from time to time the prohibition that is now material
has remained
unaltered.
1
The section prohibits any person from performing any act
as an estate agent unless a fidelity fund certificate has been issued
to
him or her. In 1985 the section as it then was â which contained
a prohibition in the same form â came under consideration in
Noragent (Edms) Bpk v De Wet.
2
It was held in that case that the section did not have
the effect of invalidating the contract of mandate of an estate agent
who acts
in contravention of its terms and that he or she was
entitled to enforce a contractual claim for commission.
[3] It was clearly in response to that decision that s
34A was inserted into the Act the following year.
3
In its initial form s 34A provided as follows:
âAny person acting contrary to the provisions of section 26, shall
not be entitled to remuneration in respect of a transaction
concluded
by him as an estate agent while failing to comply with the provisions
of section 26.â
In 1998 the section was substituted
4
and the material portion now reads as follows:
â(1) No estate agent shall be entitled to any remuneration or other
payment in respect of or arising from the performance of any
act [of
an estate agent], unless at the time of the performance of the act a
valid fidelity fund certificate has been issuedâ¦to
such estate
agentâ¦â.
[4] It was submitted on behalf of the appellant that the
effect of the section is to invalidate the contract of mandate
between the
appellant and the respondent (pursuant to which the
respondent became entitled to its remuneration with the result that
the payment
made by the appellant in ignorance of the invalidity of
the mandate is recoverable by the
condictio ob
turpem vel iniustam causam
(which allows for
the recovery of money that has been paid in terms of an unlawful
agreement
5
).
[5] Section 34A does not in terms invalidate the
contract of mandate of an estate agent who acts in conflict with s
26. Bearing in
mind that the section was introduced in response to
the judgment in
Noragent
â
which
had held that a contravention of s 26 of the Act did not invalidate
the contract of mandate â it is inconceivable that the
section
would not have provided expressly for invalidity if that had been the
intention with which the section was introduced. I
think it is clear
â as the court below found â that the validity of a contract of
mandate is unaffected by an act of the estate
agent in breach of s
26. In those circumstances the payment that was made in this case was
made pursuant to a valid contract and
is not recoverable by the
condictio
.
[6] It was also submitted on behalf of the appellant
that s 34A itself implicitly confers a right of action upon the
appellant to
recover remuneration that has been paid contrary to its
provisions. It was submitted that by disentitling an estate agent
from remuneration
the section not only disentitles him or her from
claiming the remuneration but also disentitles him or her from
retaining remuneration
that has been paid. The implication, so it was
argued, is that a right of action is conferred by the section for its
return. For
it would be anomalous, so it was argued, if an estate
agent were to be precluded from claiming remuneration but permitted
to retain
remuneration that has been paid.
[7] It seems to me that that misconstrues the purpose of
the section. It was not enacted for the benefit of clients who have
incurred
a contractual obligation to pay remuneration to an estate
agent who has performed his or her mandate â I have already held
that
the contract giving rise to the obligation remains valid
notwithstanding the breach of s 26 â but rather to penalize
estate
agents who have breached the section. An estate agent who
claims remuneration in conflict with s 34A might expose himself or
herself
to criminal sanction,
6
and will be prevented from enforcing his or her claim,
but I do not think it follows by necessary implication that a client
who has
settled his or her contractual obligation is accorded a right
of action for its return.
[8] It is well-established that legislation is to be
construed so as to interfere as little as possible with established
rights.
7
While it might indeed seem anomalous that an estate
agent is prohibited from enforcing a claim for remuneration that has
become due,
but may retain that remuneration if it has been paid,
that apparent anomaly arises as no more than an incident of the
purpose of
the section. Had it been intended to confer a right of
action upon a client for recovery of moneys that became contractually
due
it would have been a simple matter to do so in express terms.
Absent the express conferral of a right of action I do not think it
is conferred by necessary implication.
[9] The appeal is dismissed with costs.
____________________
R.W.
NUGENT
JUDGE
OF APPEAL
CONCUR
:
CAMERON JA)
CLOETE JA)
PONNAN JA)
SNYDERS AJA)
1
The
section was amended by s 3 of Act 10 of 1985, substituted by s 5 of
Act 40 of 1986, and again substituted by s 10 of Act 90
of 1998.
2
1985
(1) SA 267
(T).
3
The
section was inserted by s 10 of Act 40 of 1986.
4
By
s 18 of Act 90 of 1998.
5
The
Law of South Africa ed WA Joubert 2 ed Vol 9 âEnrichmentâ by JG
Lotz (updated by FDJ Brand) para 214; Wouter de Vos
Verrykingsaanspreeklikheid in die Suid-Afrikaanse Reg
3ed pp.
161-171.
6
Section
34 provides that âany person who contravenes or fails to comply
with any provision of this Actâ shall be guilty of an
offence.
7
Steyn
Die Uitleg van Wette
5ed p. 97.