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REPUBLIC OF SOUTH AFRICA
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Aer
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 37135/2012
| (A) REPORTABLE: NO
| (2) OF INTEREST TO OTHER JUDGES AIO
(3) REVISED a
| saeyees .
DATE SIGNATUR
In the matter between
DURRANVALE TRADE AND INVESTMENTS (PTY) LTD Plaintiff
and
ESTATE AGENCY AFFAIRS BOARD Defendant
JUDGMENT
MINNAAR AJ:
Introduction:
[1] The plaintiff instituted an action against the defendant in which the plaintiff
claims delictual damages. The plaintiff is suing the defendant as cessionary of
Mr Graham Carl Guthrie (“Guthrie”).
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[2] At the commencement of the trial, it was ordered that the issue of liability
(merits) be separated from the issue of quantum.
[3] In broad terms, it is the plaintiffs pleaded case:
a. During the period 1 January 2007 to 31 December 2009, Guthrie and
CRS Brokers CC (“CRS”) were each qualified and entitled to be issued
with a Fidelity Fund Certificate (“FFC”).
b. Both Guthrie's and CRS’s respective FFCs were renewed annually by
the defendant from 1 January to 31 December of each year.
c. Guthrie and CRS were each Estate Agents as defined in section 1(c) of
the Estate Agency Affairs Act, No 112 of 1976 (“the Act”), and Guthrie
conducted CRS’s business as such on its behalf according to their said
FFCs.
d. The defendant owed Guthrie and/or CRS a duty of care not to decline or
fail to renew Guthrie’s and/or CRS’s FFCs without justification.
e. During December 2009, the defendant wrongfully, unlawfully and without
just or any other cause, refused to renew Guthrie's and/or CRSs said
FFCs, notwithstanding that it was obliged in fact and in law to do so.
f. As aresult of this refusal to renew the FFCs, since 1 January 2010, both
Guthrie and CRS were precluded from carrying on business as, and/or
from performing the act of, an Estate Agent and they did not do so. This
resulted in CRS's business ceasing to exist and both Guthrie and CRS
accordingly lost all benefits arising therefrom. The value of Guthrie's
members’ interest in CRS was diminished. Guthrie permanently lost his
entitlement to his salary being paid from CRS, and he lost all benefits
that he would otherwise have received from the conduct by him of
business as an Estate Agent.
g. On or about 15 September 2012, Guthrie sold, ceded, assigned,
transferred and made over unto and in favour of the plaintiff all his rights,
title and interest in and to his claim against the defendant, for value
received.
[4] In summary, it is the defendant's pleaded case:
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a. During 2009, Guthrie disclosed to the defendant that he had been
convicted of an offence involving an element of dishonesty in the
Pietermaritzburg Magistrates Court in 2005.
b. On 14 April 2009, Guthrie was deregistered in the defendant's records
as he was disqualified from holding an FFC in terms of section 27 of the
Act as a result of the conviction.
c. On or about 16 November 2009, CRS was placed in deregistration by
the Companies and Intellectual Property Commission (“CIPC”). On or
about 16 July 2021, CRS was deregistered by the CIPC.
d. The defendant was precluded from issuing an FFC for 2010 to Guthrie,
as he was disqualified in terms of section 27 of the Act from being issued
with an FFC due to the said conviction.
e@. The defendant was precluded from issuing an FFC for 2010 to CRS, as
for an FFC to be issued to CRS, an FFC had to be issued to the principal
agent, which could not be complied with, as the principal agent, Guthrie,
was disqualified from being issued with an FFC.
f. The defendant was precluded in terms of section 28(5)(b) of the Act from
issuing an FFC for 2010 to CRS as CRS had been deregistered by the
CIPC on 16 November 2009, alternatively, 16 July 2010 and remained
deregistered thereafter and was in law not capable of performing any
juristic act, including obtaining an FFC or carrying on business or
performing the act of an Estate Agent.
g. The defendant was precluded from issuing an FFC to Guthrie as for an
FFC to be issued to Guthrie as an employee of an Estate Agent, the
Estate Agent (CRS) was required to hold an FFC which could not be
complied with, as CRS could not be issued with an FFC as they were
deregistered as a Close Corporation.
h. In the premises, the defendant denies that its refusal to renew FFCs for
Guthrie or CRS was wrongful, unlawful or without just cause and denies
that it was obliged in law or fact to issue the said FFCs for 2010.
[5] In the alternative to the defence pleaded in paragraph 4 above, the defendant
pleaded that the defendant refused to issue an FFC to Guthrie and CRS for the
2010 period on the basis as set out in paragraph 4 above. This refusal