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[2014] ZAFSHC 195
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Erasmus and Another v Verna Van Den Blink Properties CC (2557/2012) [2014] ZAFSHC 195 (30 October 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No. : 2557/2012
In
the matter between:-
ABEL
HENDRIK ERASMUS N.O.
….............................................................
1
st
Applicant/Defendant
ABEL
HENDRIK ERASMUS JNR N.O.
…....................................................
2
nd
Applicant/Defendant
and
VERNA
VAN DEN BLINK PROPERTIES CC
…................................................
Respondent/Plaintiff
JUDGMENT
BY:
JORDAAN, J
DELIVERED
ON:
30 OCTOBER 2014
LEAVE
TO APPEAL
[1]
This is an application for leave to appeal against a judgment by
Acting Judge I.M.M. Motloung delivered on 26 August 2014 wherein
he
granted judgment in favour of the plaintiff against the defendants
for payment of estate agent commission and costs. The
applicants are the unsuccessful defendants in the matter and ask
leave to appeal to the Full Bench of the Free State High Court.
For purposes of this judgment I will refer to the applicants as
defendants and the respondent as plaintiff.
[2]
The grounds on which leave to appeal are sought, as far as relevant,
are the following:
(1)
That the plaintiff, being a close
corporation, was not in its own name in possession of the necessary
Fidelity Fund Certificate
in terms of the Estate Agency Affairs Act
112 of 1976.
It appears to have
been common cause that the sole member of the plaintiff was indeed at
all relevant times in possession of the
necessary Fidelity Fund
Certificate. The Act, read as a whole, does not provide for a
juristic person to be issued with a
Fidelity Fund Certificate.
In the case of a company such certificate is required to be issued to
each and every director
and managing officer and in terms of the Act,
as far as a close corporation is concerned, such certificate is
required to be issued
to each member or management officer of such
corporation.
Since
it appears to have been common cause that the sole member of the
corporation has been issued with such certificate at all
relevant
times, this ground of attack appears to be unfounded.
(2)
That the estate agent in the employ of the
plaintiff, Snyman, was not in possession of a valid Fidelity Fund
Certificate at the
time of accepting the mandate to find a lessee for
the premises and only was issued with such certificate effective from
the 29
th
April 2011. It appears that the mandate was obtained by the
said Snyman in February 2011 and that he did quite some negotiations
to find a lessee for the premises from then on up to the effective
date of his certificate being the 29
th
April 2011 and beyond that up to October 2011 when the plaintiff was
effectively circumvented and prevented from fulfilling the
mandate,
according to the judgment.
[3]
After finding, in accordance with the decision in
Wakefields
Real Estate (Pty) Ltd v Attree and Others
2011 (6) SA 557
(SCA), that the absence of a Fidelity Fund
Certificate for Snyman does not invalidate the mandate, the trial
court dealt with the
payment of commission as follows:
“
However,
the commission payable could not be enforced by the plaintiff unless
and (until) Snyman had been issued with his certificate
on the 29
th
May 2011.” (The insertion is mine.)
The
trial judge also found as follows:
“
Snyman,
and by necessary implication the plaintiff (as the employer and real
party to the mandate agreement), was therefore entitled
to enforce
payment of the commission for services rendered after being issued
with the Fidelity Fund Certificate, being since the
29
th
May 2011.”
[4]
The impression gained from the judgment is that the learned judge was
of the view that it was only the enforcement of payment
of commission
that was in issue and that, if an estate agent was not in possession
of a valid certificate at the time of performing
the necessary acts
as described in the definition of estate agent, once he obtains such
certificate, the commission already owned,
can be enforced, but not
before the issue of such certificate.
[5]
That stance of the trial court appears to me to be questionable. In
terms of section 34A it is clearly stipulated that
no estate agent
shall be entitled to any remuneration or other payment in respect or
arising from the performance of any act referred
to in the definition
unless, at the time of the performance of that act, a valid Fidelity
Fund Certificate has been issued.
It is not the enforceability
of payment of remuneration, but the entitlement thereto that is at
issue.
[6]
In the present matter the
novel
situation arises that the acceptance of the mandate and some
preliminary negotiations were done by Snyman, whilst not being in
possession of such certificate, but after the obtaining of such
certificate, the negotiations continued up to October 2011 so that
he
indeed did some negotiations before and some after the obtaining of
the certificate. Whether, in a situation like this,
it
disentitles the plaintiff completely from any remuneration, is
questionable. It might be that the plaintiff would be entitled
to at least part of the remuneration for the services rendered after
the obtaining of the Fidelity Fund Certificate by Snyman.
[7]
However, of importance is that the trial court did not really pay
attention to this last question and there does appear to be
a
reasonable possibility that a court of appeal may come to a different
conclusion, if not completely disentitling the plaintiff
to
commission, at least there remains a possibility that a court of
appeal might find that the plaintiff would not be entitled
to full
remuneration for the services rendered before Snyman obtained the
necessary certificate.
[8]
Usually and in accordance with the usual practice of the business of
estate agents, commission is only earned and claimable
if effect is
given to the mandate in that a valid agreement comes into being and
the estate agent being the effective cause thereof.
It may be
that remuneration can be claimed for certain work done or not, but I
find that highly improbable. In view of that
fact, the fact
that (accepting that plaintiff was the effective cause of the
eventual agreement) the agreement was only negotiated
and concluded
after further negotiations which were done after Snyman became
entitled to act as an agent with a valid certificate
namely after the
29
th
April 2011, may be a sound basis for finding that the plaintiff is
indeed entitled to the full commission as agreed upon or as
granted
by the court
a quo
.
[9]
Although I have grave doubt that a court of appeal will come to a
different conclusion from the trial court, I cannot exclude
that as a
reasonable possibility.
[10]
In the result leave to appeal to the Full Bench of this division is
granted. The costs of this application shall be costs
in the
appeal.
_______________
A.F.
JORDAAN, J
On
behalf of applicants: Adv S.J. Reinders
Instructed by:
Spangenberg Zietsman
& Bloem Attorneys
BLOEMFONTEIN
On
behalf of respondent: Adv P.J. Loubser
Instructed by:
Eugene
Holtzhausen Attorneys
BLOEMFONTEIN