REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: 2024-148142
In the matter between:
SAKELIGA NPC APPLICANT
and
PROPERTY PRACTITIONERS REGULATORY
AUTHORITY FIRST RESPONDENT
MINISTER OF HUMAN SETTLEMENTS
WATER AND SANITATION SECOND RESPONDENT
MINISTER OF TRADE, INDUSTRY AND COMPETITION THIRD RESPONDENT
NATIONAL PROPERTY FORUM NPO FOURTH RESPONDENT
Delivered: This judgment is handed down electronically by uploading it to the electronic file
of this matter on CaseLines. In the event that there is a discrepancy between the date the
judgment is signed and the date it is uploaded to CaseLines, the date t he judgment is
uploaded to CaseLines is deemed to be the date that the judgment is handed down.
JUDGMENT
VAN DER SCHYFF J
Introduction
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 8 September 2026 E van der Schyff
-
2
[1] The applicant, Sakeliga NPC, a non -profit company (Sakeliga) seeks an order
declaring paragraphs (a)(iv) to (e) of the definition of “property practitioner” in s 1 of the
Property Practitioners Act 22 of 2019 (PPA), and s 50(a)(x) of the Act, unconstitutional and
invalid to the extent of their inconsistency with the Constitution , together with costs and
further or alternative relief.
[2] Although its notice of motion also challenged regulation 2 of the Property
Practitioners Regulations, Sakeliga expressly abandoned that challenge. Its case is that
the impugned parts of the definition are impermissibly overbroad and infringe s 22 of the
Constitution, alternatively lack a rational connection to a legitimate governmental purpose.
[3] Section 50(a)(x), which provides that the Authority may not issue a Fidelity Fund
certificate to any person who is not in possession of a ‘valid BEE certificate’, is attacked on
substantially similar constitutional and rationality grounds.
[4] Sakeliga’s attack on s 50(a)(x) is that the provision makes possession of a valid BEE
certificate a condition for the issue of a Fidelity Fund certificate, although, on its case, the
two serve materially different purposes. It contends that a Fidelity Fund certificate is
concerned with the regulation and protection of consumers in the conduct of property -
practitioner business, while possession of a BEE certificate bears no rational relationship
to those purposes. The requirement is therefore said to constit ute an irrational barrier to
the lawful practice of the occupation and, for that reason, to offend s 22 of the Constitution.
A related difficulty arising from the papers concerns what documentary requirement s
50(a)(x) in fact imposes and how the requirement is to be implemented since the term ‘valid
BEE certificate’ is not defined in the PPA.
[5] The two surviving challenges are related in that each concerns the consequences
[5] The two surviving challenges are related in that each concerns the consequences
of being brought within the PPA’s regulatory scheme, but they raise distinct questions. The
first concerns the permissible reach of the statutory definition of “property practitioner”. The
second concerns the validity of a particular condition which must be met before a Fidelity
Fund certificate may be issued. I deal with them separately after setting out the statutory
scheme and the parties’ cases.
3
The parties
[6] For its locus standi in iudicio, Sakeliga relies on s 38 of the Constitution and states
that it litigates in the interests of its members and in the public interest.
[7] The Authority disputed Sakeliga’s standing in its answering affidavit. It contended
that Sakeliga is not itself a property practitioner, that it is unaffected by the definition or by
s 50(a)(x), and that it may not litigate on behalf of the wider community of property
practitioners or in the public interest.
[8] Section 38(d) and (e) of the Constitution entitle a person acting in the public interest,
and an association acting in the interest of its members, to approach a court alleging that
a right in the Bill of Rights has been infringed or threatened. Sakeliga i s a business
association whose stated objects include the protection of constitutional rights, the rule of
law, and a sustainable business environment, and whose members include persons
required to hold Fidelity Fund certificates under the PPA. A challenge to the constitutional
validity of provisions of general application which regulate entry into an occupation is pre -
eminently one which such an association may bring, and the objective nature of the enquiry
into constitutional validity does not depend on the deponent’s own position. I am satisfied
that Sakeliga has established standing under s 38(d) and (e).
[9] The first respondent is the Property Practitioners Regulatory Authority (the
Authority), established under the PPA.
[10] The second respondent is the Minister responsible for the administration of the PPA.
The third respondent is the Minister responsible for the administration of the Broad -Based
Black Economic Empowerment Act 53 of 2003. The second and third respondents elected
to abide the Court’s decision.
[11] The National Property Forum NPO (NPF) was not originally cited. It applied for leave
to intervene, and on 17 September 2025 leave to intervene was granted and its joinder as
to intervene, and on 17 September 2025 leave to intervene was granted and its joinder as
fourth respondent ordered. The NPF opposes the constitutional relief and places particular
emphasis on the transformation objectives of the PPA.
4
Condonation
[12] The NPF seeks condonation for the late filing of its answering affidavit. It explains
the delay with reference to the time required to convene its members, obtain instructions
and consider the papers. Sakeliga opposes condonation and contends that the explanation
is inadequate. The NPF’s affidavit has nevertheless been fully answered. Due to the
importance of having sufficient submissions when considering a constitutional challenge to
a statute, condonation is granted.
[13] Sakeliga also objects to portions of the NPF’s affidavit on the basis that they
comprise legal argument, inadmissible hearsay or unsupported assertions. To the extent
that an affidavit contains legal submission, I treat it as submission rather than evidence. No
factual finding in this judgment is based on a contested assertion merely because it appears
in an affidavit.
The statutory scheme and the purposes of the PPA
[14] The PPA came into operation on 1 February 2022 and repealed the Estate Agency
Affairs Act 112 of 1976. The new statute is framed more broadly than the repealed Act. Its
preamble refers, among other matters, to historically imbalanced patterns of property
ownership, transformation of the property market, the need for consumer assistance in
property transactions and the need for that assistance to be rendered professionally.
[15] Section 2 provides that the PPA applies to the marketing, promotion, managing,
sale, letting, financing and purchase of immovable property and to rights, obligations,
interests, duties or powers associated with or relevant to such property.
[16] Section 3 identifies several objects the Act aims to attain. They include the regulation
of property practitioners, consumer protection, education and training, licensing, a just and
equitable framework for property -market activity, meaningful participatio n by historically
disadvantaged individuals and small, micro and medium enterprises, and transformation of
the property market.
the property market.
[17] The statutory scheme gives effect to those objects through different mechanisms.
The Authority is charged with regulating property practitioners and protecting consumers.
5
Chapter 4 deals with transformation. Other chapters deal with compliance and
enforcement,1 the Property Practitioners Fidelity Fund, 2 the Fidelity Fund certificate
regime,3 conduct of property practitioners,4 and consumer protection.5
[18] The definition of “property practitioner” is therefore significant because it identifies,
directly or for specified purposes, persons who may become subject to these regulatory
mechanisms. The constitutional challenge cannot be resolved merely by comparing the
new definition with the former definition of “estate agent”. It is nevertheless necessary to
determine precisely what the new definition means before deciding whether its reach bears
the constitutionally required relationship to the purposes of the statute.
The impugned definition
[19] The term ‘property practitioner’ is defined in the PPA to mean:
(a) any natural or juristic person who or which for the acquisition of gain on
his, her or its own account or in partnership, in any manner holds, himself,
herself or itself out as a person who or which, directly or indirectly, on the
instructions of or on behalf of any other person –
(i) by auction or otherwise sells, purchases, manages or publicly
exhibits for sale property or any business undertaking or
negotiates in connection therewith or canvasses or undertakes or
offers to canvas a seller or purchaser in respect thereof;
(ii) lets or hires or publicly exhibits for hire property or any business
undertaking by electronic or other means or negotiates in
connection therewith or canvasses or undertakes or offers to
canvass a lessee or lessor in respect thereof;
(iii) collects or receives any monies payable on account of a lease of
a property or a business undertaking;
(iv) provides, procures, facilitates, secures or otherwise obtains or
markets financing for or in connection with the management, sale
1 Chapter 5.
2 Chapter 7.
3 Chapter 8.
4 Chapter 9.
5 Chapter 10.
6
or lease of a property or a business undertaking, including a
provider of bridging finance and a bond broker, but excluding any
person contemplated in the definition of ‘financial institution’ in
section 1 of the Financial Services Board Act, 1990 (Act No. 97 of
1990);
(v) in any other way acts or provides services as intermediary or
facilitator with the primary purpose to, or to attempt to effect the
conclusion of an agreement to sell and purchase, or hire or let, as
the case may be, a property, or business undertaking, including, if
performing the acts mentioned in this subparagraph, a home
ownership association, but does not include –
(aa) a person who does not do so in the ordinary course
of business;
(bb) where the person is a natural person and that person
in the ordinary course of business offers a property
for sale which belongs to him or her in his or her
personal capacity;
(cc) an attorney or candidate attorney as defined in
section 1 of the Attorneys Act, 1979 ( Act No. 53 of
1979); or
(dd) a sheriff as defined in section 1 of the Sheriffs Act,
1986 (Act No. 90 of 1986), when he or she performs
any functions contemplated in paragraph (a) of this
definition, irrespective of whether or not he or she
has been ordered by a court of law to do so; or
(vi) renders any other service specified by the Minister on the
recommendation of the Board from time to time by notice in the
Gazette;
(b) includes any person who sells, by auction or otherwise, or markets,
promotes or advertises any part, unit or section of, or rights or shares,
7
including time share and fractional ownership, in a property or property
development;
(c) includes any person who for remuneration manages a property on behalf
of another;
(d) includes a trust in respect of which the trustee, for the acquisition of gain
on the account of the trust, directly or indirectly in any manner hold out
that it is a business which, on the instruction of or on behalf of another
person, performs any act referred to in paragraph (a);
(e) for the purposes of sections 34, 46, 48, 59, 60, 61 and 65 includes –
(i) any director of a company or a member of a close corporation who
is a property practitioner as defined in paragraph (a);
(ii) any person who is employed by a property practitioner as
envisaged in paragraph (a) and performs on his, her or its behalf
any act referred to in subparagraph (i), (ii), (iv), (v) or (vi) of that
paragraph;
(iii) any trustee of a trust which is a property practitioner as envisaged
in paragraph (d);
(iv) any person who is employed by a property practitioner as
envisaged in paragraph (b) and performs on its behalf any act
referred to in subparagraph (i), (ii), (iv), (v) or (vi) of paragraph (a);
and
(v) any person who is employed by a property practitioner
contemplated in paragraph (a) or (b) to manage, supervise or
control the day-to-day operations of the business of that property
practitioner;
(f) includes any person who is employed by or renders services to an
attorney or a professional company as defined in section 1 of the
Attorneys Act, 1979, other than an attorney or candidate attorney, and
whose duties consist wholly or primarily of the perfor mance of any act
referred to in subparagraphs (i), (ii), (iii), (iv), (v) or (vi) of paragraph (a),
on behalf of such attorney or professional company whose actions will be
specifically covered by the Attorneys’ Fidelity Fund and not the Property
Practitioners Fidelity Fund;
8
(g) for the purposes of section 61 and any regulation made under section 70,
includes any person who was a property practitioner at the time when he
or she was guilty of any act or omission which allegedly constitutes
sanctionable conduct referred to in section 62,
but does not include an attorney who, on his own account, or as a partner in
a firm of attorneys or as a member of a professional company, as defined in
section 1 of the Attorneys Act, 1979, or a candidate attorney as defined in
that section, who performs any act referred to in paragraph (a), in the course
of and in the name of and from the premises of such attorney’s or
professional company’s practice, provided that such an act may not be
performed –
(i) in partnership with any person other than a partner in the practice
of that attorney as defined in section 1 of the Attorneys Act, 1979;
or
(ii) through the medium of or as a director of a company other than
such professional company.
and ‘advertise’ for the purposes of this definition does not include advertising
in compliance with the provisions of any other law;
The parties’ cases
The challenge to the definition
[20] Sakeliga’s starting point is that the repealed Estate Agency Affairs Act regulated a
recognisable intermediary relationship: a person acted for gain on another’s mandate in
relation to property transactions and could receive or account for client money. It contends
that this relationship established the rational basis for the burdens historically imposed on
estate agents.
[21] The introductory words to paragraph (a) of the new definition (the opening
qualification) retain the requirement that the person act, directly or indirectly, “on the
instructions of or on behalf of any other person” for such person to fall in the definition of a
property practitioner. Sakeliga emphasises that the words are not repeated in paragraphs
9
(b) and (c). It contends that the omission materially, and irrationally, enlarges the class of
regulated persons.
[22] The founding affidavit gives examples of the alleged breadth. Sakeliga says that
paragraph (b) may include a private owner selling without an intermediary, a developer
marketing its own property, and persons who advertise such property, including publication
and internet platforms. It says paragraph (c), read literally, may extend to caretakers, farm
managers, residence matrons, factotums or housekeepers who manage property for
remuneration. It also relies on regulation 41.15, which contemplates exemption for a party
acting solely as a conduit or advertising platform, as illustrating the asserted reach of
paragraph (b).
[23] Paragraphs (d) and (e) are also included in the relief sought. Sakeliga’s broader
complaint is that the definition extends statutory status and regulatory consequences
beyond persons performing what it regards as the conventional estate -agency function. It
relies in this regard on the breadth of the definition, the licensing consequences that follow
from classification, and the possibility of criminal consequences for acting without the
required Fidelity Fund certificate.
[24] The Authority rejects the premise that the PPA must remain confined to the former
estate-agency model. It says the enactment responded to an evolving property sector no
longer limited to estate agents concerned only with sale and letting on another’s mandate.
The Authority relies on the PPA’s broader purposes, including transformation and
consumer protection. It also contends that, although the notice of motion impugns
paragraphs (a)(iv) to (e), the founding affidavit advances factual allegations only in respect
of paragraphs (b) and (c).
[25] The NPF likewise contends that the broader definition reflects a legislative decision
to regulate a wider property sector, with emphasis on transformation, market participation
to regulate a wider property sector, with emphasis on transformation, market participation
and regulation beyond the traditional estate -agent category. The respondents th erefore
dispute that the extension identified by Sakeliga is overbroad, irrational or constitutionally
impermissible.
10
The challenge to s 50(a)(x)
[26] Sakeliga’s complaint concerning s 50(a)(x) is narrower. The section prohibits the
Authority from issuing a Fidelity Fund certificate to a person who does not hold a valid BEE
certificate. Sakeliga contends that the Fidelity Fund certificate and a BEE certi ficate serve
different purposes and that there is no rational relationship between possession of the latter
and the consumer -protection purpose which, on its case, underlies the Fidelity Fund
certificate regime.
[27] The founding affidavit also challenges the meaning of the requirement. It says the
Act does not define what constitutes a ‘valid BEE certificate’ or specify the requirements for
validity, leaving the Authority to decide whether a certificate is valid. It a lso records the
Authority’s shifting practice.
[28] The Rule 16A notice identified s 50(a)(x) as a provision whose constitutional validity
was challenged. Although the notice formulated the challenge principally in terms of s 22
and irrationality, the founding affidavit squarely raised the uncertainty conce rning the
meaning of “valid BEE certificate”. That issue was answered by the respondents and fully
ventilated in the papers and argument. I am satisfied that the Rule 16A notice was
consonant with the constitutional challenge advanced on the papers.
[29] The Authority addresses the challenge primarily by relying on the PPA's
transformation purpose. It contends that the impugned provision is directed at that
legitimate governmental objective and denies that the requirement is irrational. The NPF
likewise places transformation at the center of its answer and contends that the challenged
condition forms part of the broader statutory effort to transform and track the status of
transformed participation in the property sector.
The constitutional and interpretative framework
Statutory interpretation
[30] Statutory interpretation is a unitary exercise in which text, context and purpose are
[30] Statutory interpretation is a unitary exercise in which text, context and purpose are
considered together. The language chosen by the Legislature remains the point of
departure, to be read in its statutory setting and in light of its purpose. That approach was
11
formulated in Natal Joint Municipal Pension Fund v Endumeni Municipality 6 and endorsed
by the Constitutional Court in Chisuse and Others v Director-General, Department of Home
Affairs and Another ,7 and University of Johannesburg v Auckland Park Theological
Seminary and Another.8
[31] Context forms part of the enquiry from the outset and may include the surrounding
provisions, the chapter, long title, preamble, objects and structure of the statute.9
[32] Purpose is important, but does not permit a court to replace Parliament’s language
with wording that would better achieve the perceived statutory purpose. Endumeni at para
18 cautions against cross ing the divide between interpretation and legislation. 10 Chisuse
likewise confirms that contextual and purposive interpretation must remain faithful to the
text.11
[33] The Constitution adds a further dimension. Section 39(2) requires legislation to be
interpreted in a manner that promotes the spirit, purport and objects of the Bill of Rights.
Where a provision is reasonably capable of more than one meaning, a court should prefer
the meaning that preserves constitutional validity.
[34] That principle is, however, bounded by the language Parliament chose. A
constitutionally compliant interpretation should be preferred only if the provision can
reasonably bear it without undue strain .12 Chisuse confirms that constitutional avoidance
cannot become judicial amendment. 13 If the text cannot reasonably bear a compliant
meaning, validity and remedy must be confronted.
6 2012 (4) SA 593 (SCA) at para 18.
7 2020 (6) SA 14 (CC) at paras 46-52.
8 2021 (6) SA 1 (CC) at paras 64-65.
9 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4)
SA 490 (CC) at para 89, and Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) at
para 28.
10 At para 18.
11 At paras 48 and 52.
12 Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors
(Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others
2001 (1) SA 545 (CC) at paras 22-26.
13 At paras 53-59.
12
[35] The sequence matters here. The Court must first determine what the challenged
provisions mean when read textually, contextually and purposively within the PPA, and only
then determine whether the provisions so understood are constitutionally valid .14 The
statutory context shows that the PPA pursues related but distinct purposes, including
consumer protection, professional regulation, licensing, market participation and
transformation. They are not interchangeable. Each impugned provision must therefore be
assessed against the purpose or purposes to which it is directed.
[36] The PPA advances its objects through different, sometimes overlapping
mechanisms. Within this framework, section 50(a)(x) is best understood as a
transformation-focused licensing mechanism. It makes compliance with a BEE -related
requirement a condition for obtaining the Fidelity Fund certificate required for lawful
practice. The question is therefore not whether transformation is legitimate, but whether the
mechanism Parliament chose bears the required relationship to that objective and can
operate coherently within the statutory scheme.
Section 22 of the Constitution
[37] Sakeliga relies on Affordable Medicines Trust and Others v Minister of Health and
Another.15 Here, the Constitutional Court held that s 22 protects both the freedom to choose
a trade, occupation or profession and the practice of the chosen vocation. Sakeliga’s case
is that a statutory condition that prevents a person from obtaining the certificate necessary
to practice lawfully may go beyond regulating practice and negatively affect occupational
choice.
[38] That test was restated by the Constitutional Court in South African Diamond
Producers Organisation v Minister of Minerals and Energy NO and Others .16 Here the
Constitutional Court held that a provision which, objectively analysed, has a negative
impact on the choice of a trade, occupation or profession must be tested against the
impact on the choice of a trade, occupation or profession must be tested against the
criterion of reasonableness in s 36(1), while a provision which regulates only the practice
14 Chisuse at para 46.
15 2006 (3) SA 247 (CC), particularly paras 58-66.
16 2017 (6) SA 331 (CC) at para 65.
13
of a trade will pass constitutional muster if it satisfies the rationality standard and violates
no other right in the Bill of Rights.
[39] The Authority’s position is that the PPA regulates the manner in which activities in
the property sector are practised and does not deprive persons of the freedom to choose
an occupation. The NPF similarly contends that the impugned provisions regulate
participation in, and the practice of, property -related occupations rather than prevent their
free choice. In the alternative, it submits that any limitation of s 22 is reasonable and
justifiable under s 36, having regard to the Act’s regulatory, consumer -protection and
transformation objectives.
Rationality and the rule of law
[40] Sakeliga’s alternative attack is founded on rationality. It claims that the impugned
provisions include persons and impose conditions without rational connection to a
legitimate governmental purpose. The respondents rely on the PPA’s consumer-protection,
regulatory and transformation objectives.
[41] The applicable standard against which the relevant provisions must be measured is
stated in Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte
President of the Republic of South Africa and Others 17 and applied in Affordable
Medicines18 - legislative power must bear a rational connection to a legitimate
governmental purpose. The enquiry is objective and does not ask whether better means
were available.
[42] Sakeliga also invokes the rule of law, contending that persons must be able to
ascertain whether the Act applies to them, particularly because acting without the required
Fidelity Fund certificate may incur criminal consequences. That concern must be
distinguished from mere breadth. A provision may be broad without being uncertain; the
question of meaning must therefore be resolved before the constitutional consequence is
considered.
17 2000 (2) SA 674 (CC) at paras 85 -86.
18 At para 74.
14
[43] The rule of law requires legislation to be sufficiently clear for those bound by it to
ascertain what is required .19 Perfect precision is not required, nor is a provision invalid
merely because interpretation is necessary or difficult cases arise at the margins. Invalidity
follows where those affected cannot determine with reasonable certainty how the provision
operates, including where officials charged with applying it face the same difficulty , and
where criminal penalties are involved.20
Interpretation of the definition of “property practitioner”
Overview
[44] The definition is composite. Paragraph (a) contains the principal definition. Its
opening qualification refers to a natural or juristic person who, for the acquisition of gain on
his, her or its own account or in partnership, holds himself, herself or itself out as a person
who, directly or indirectly, acts “on the instructions of or on behalf of any other person”. The
activities listed in subparagraphs (i) to (vi) are therefore performed within those confines.
[45] Paragraphs (b), (c) and (d) are expressed as inclusive extensions of the definition.
Paragraph (e) operates differently: it extends the definition only for the purposes of the
specified sections and only to the persons identified in its five subparagraphs. The structure
of the definition therefore requires each challenged provision to be read on its own terms,
while remaining part of the statutory scheme as a whole.
Paragraph (a)(iv)-(vi)
[46] Paragraph (a)(iv) includes a person who provides, procures, facilitates, secures,
otherwise obtains or markets financing for or in connection with the management, sale or
lease of a property or a business undertaking. It expressly includes a provider of bridging
finance and a bond broker, but excludes a person contemplated in the statutory definition
of “financial institution” to which the paragraph refers.
19 Affordable Medicines at paras 108 -109; Dawood and Another v Minister of Home Affairs and
19 Affordable Medicines at paras 108 -109; Dawood and Another v Minister of Home Affairs and
Others 2000 (3) SA 936 (CC) at paras 47-48.
20 Bertie Van Zyl (Pty) Ltd and Another v Minister for Safety and Security and Others 2010 (2) SA
181 (CC) at para 47; Chisuse at para 54, adopting Abahlali Basemjondolo Movement SA and
Another v Premier of the Province of KwaZulu -Natal and Others 2010 (2) BCLR 99 (CC) at paras
124-125.
15
[47] Because subparagraph (iv) forms part of paragraph (a), the financing activity does
not stand alone. It must be performed by a person who satisfies the opening qualification,
including the requirements of gain, holding out and acting, directly or indirectly , on the
instructions of or on behalf of another. On its ordinary reading, the provision therefore
reaches financing activity connected with a property transaction when performed within that
representative or facilitative setting.
[48] Paragraph (a)(v) is framed as a residual intermediary provision. It applies to a person
who, in any other way, acts or provides services as an intermediary or facilitator with the
primary purpose of effecting, or attempting to effect, the conclusion of an agreement to sell
and purchase, or hire or let, property or a business undertaking. A home ownership
association is expressly included when it performs those acts.
[49] The subparagraph then excludes four categories. It excludes a person who does not
act in the ordinary course of business; a natural person who, in the ordinary course of
business, offers for sale property belonging to him or her in a personal capacity; attorneys
and candidate attorneys in the circumstances specified; and sheriffs performing the
identified functions. Those exclusions delimit the reach of subparagraph (v).
[50] Paragraph (a)(vi) includes a person who renders any other service specified by the
Minister, on the recommendation of the Board, by notice in the Gazette. The subparagraph
is not a free-standing definition. It remains part of paragraph (a), and any service specified
under it is consequently subject to the opening qualification and must be understood within
the subject matter and purposes of the PPA. The power is also conditioned on a
recommendation by the Board and the publication of a notice in the Gazette.
Paragraph (b)
[51] Paragraph (b) “includes any person who sells, by auction or otherwise, or markets,
[51] Paragraph (b) “includes any person who sells, by auction or otherwise, or markets,
promotes or advertises any part, unit or section of, or rights or shares, including time share
and fractional ownership, in a property or property development”. Unlike parag raph (a), it
does not repeat the requirements of gain, holding out or acting on the instructions of or on
behalf of another. That omission must be given effect. The paragraph is therefore capable
of applying to a person who sells, markets, promotes or adve rtises the listed property
interests whether or not that person acts on the mandate of another.
16
[52] A developer marketing units in its own development can therefore fall within
paragraph (b), notwithstanding that it does not act “on behalf of another” in the sense
contemplated by paragraph (a). The same is true of a person who undertakes the sale,
marketing or promotion of those interests for others.
[53] The use of the word “advertises” extends the provision further. The definition
excludes, for its purposes, advertising in compliance with another law, but that qualification
does not on its face exclude every publisher, broadcaster or online platform that merely
carries another person’s property advertisement.
[54] Regulation 41.15 is significant in this regard. It proceeds on the footing that a person
acting solely as a conduit or platform for advertisements may nevertheless fall within the
definition and require exemption. The regulation cannot determine the meanin g or validity
of paragraph (b), but it confirms the breadth identified is a practical, and not merely
hypothetical, concern.
[55] In addition, the breadth of paragraph (b) is not confined to developers or commercial
marketers. Because it contains no requirement of gain, ordinary course of business or
acting for another, its wording is capable of including a private owner who sells hi s or her
own part, unit, section, right or share of the kind listed in the paragraph.
[56] This is significant for the interpretation of the definition as a whole. Paragraph (a) is
structured around acting on the instructions of or on behalf of another, and paragraph (a)(v)
expressly excludes both a person, whether natural or juristic, who does not act in the
ordinary course of business and, separately, a natural person who in the ordinary course
of business offers for sale property belonging to him or her in a personal capacity.
Paragraph (b) contains no corresponding qualification or exclusion.
[57] On its ordinary wording, paragraph (b) is therefore capable of extending beyond
[57] On its ordinary wording, paragraph (b) is therefore capable of extending beyond
developers and commercial property intermediaries in three material respects. It may
include a natural person who privately sells, markets or advertises his or her own unit,
section or other listed interest merely because of the form of the property interest
concerned. It may also include a person, whether natural or juristic, who sells, markets,
17
promotes or advertises such an interest otherwise than in the ordinary course of business,
which in turn may include a person who acts purely as a conduit for the distribution or
publication of advertisements or marketing material.
Paragraph (c)
[58] Paragraph (c) includes “any person who for remuneration manages a property on
behalf of another”. Unlike paragraph (b), the relationship to another person is express. The
interpretative difficulty lies in the scope of the word “manages”.
[59] Read in isolation, the word “manages ” is capable of a very wide meaning. In the
statutory context, however, paragraph (c) is more naturally directed at property
management as a remunerated service rendered on behalf of another, rather than every
subordinate task of oversight, care or physical upkeep relating to premises. This
construction accords with a statute regulating property -sector activity through licensing,
conduct, accounting and consumer-protection obligations.
Paragraph (d)
[60] Paragraph (d) extends the definition to a trust in respect of which the trustee, for the
acquisition of gain on account of the trust, directly or indirectly holds out that it is a business
which, on the instruction of or on behalf of another person, perfor ms an act referred to in
paragraph (a).
[61] The paragraph thus reproduces the central limiting features of paragraph (a):
acquisition of gain, holding out as a business, acting on the instructions of, or on behalf of,
another, and performing an activity referred to in paragraph (a). Its effect is to bring within
the definition a trust as an organisational form through which property -practitioner activity
is conducted.
Paragraph (e)
[62] Paragraph (e) operates only for the purposes of ss 34, 46, 48, 59, 60, 61 and 65. It
does not create an undifferentiated extension of the definition for every purpose of the PPA.
[63] Its five subparagraphs identify different relationships to an underlying property -
[63] Its five subparagraphs identify different relationships to an underlying property -
practitioner business. They include a director of a company or member of a close
corporation who is a property practitioner as defined in paragraph (a); an employee of a
18
paragraph (a) property practitioner who performs on its behalf specified paragraph (a) acts;
a trustee of a trust contemplated in paragraph (d); an employee of a paragraph (b) property
practitioner who performs specified paragraph (a) acts on its behalf; and a person employed
by a paragraph (a) or (b) property practitioner to manage, supervise or control the day -to-
day operations of that business.
[64] The effect is consequence -specific. Paragraph (e) attributes the status of property
practitioner to those associated persons only when one of the listed sections is engaged.
Its reach must therefore be assessed with regard to the categories of persons identified in
paragraph (e), the limited statutory purposes for which the definition is extended to them,
and the regulatory consequences which attach when the relevant listed section is engaged.
The constitutional challenge to the definition
Breadth, certainty and rationality
[65] The challenged provisions differ materially. Paragraphs (a)(iv), (a)(v) and (a)(vi)
remain subject to paragraph (a)’s opening qualification; paragraph (b) is an independent
inclusive provision; paragraph (c) concerns remunerated property management on beha lf
of another; paragraph (d) substantially reproduces paragraph (a)’s limits for trusts; and
paragraph (e) extends the definition only to specified associated persons and statutory
purposes. The rationality enquiry must respect those distinctions.
[66] The definition’s extension beyond the former estate-agent model does not, by itself,
establish irrationality. The PPA regulates a broader range of property -market activity and
pursues regulatory, consumer -protection, and transformation objectives. Nor is rational
regulation confined to persons who handle trust money. The question is whether each
category included bears a rational connection to one or more statutory purposes. The
enquiry is objective, and I had regard to the purposes of the PPA disclosed by the preamble
enquiry is objective, and I had regard to the purposes of the PPA disclosed by the preamble
and ss 2 and 3 of the Act as a whole.
[67] Paragraph (a)(iv) is rationally connected to those purposes. It reaches financing
activity connected with the management, sale or lease of property only where the person
also satisfies the opening qualification in paragraph (a). A person who, for gain and on the
instructions of or on behalf of another, procures, facilitates or markets financing for a
19
property transaction performs a facilitative function in that transaction. I am unable to
discern a rational disconnect between regulating that activity and the PPA's consumer -
protection and market-regulation objectives.
[68] The same applies to paragraph (a)(v). It is expressly concerned with an intermediary
or facilitator whose primary purpose is to effect, or attempt to effect, a sale, purchase, letting
or hiring agreement. The exclusions in items (aa) to (dd) further limit its reach, including by
excluding a person who does not act in the ordinary course of business and a natural
person who in the ordinary course of business offers for sale property belonging to him or
her in a personal capacity. On the interpretation adopte d above, the provision remains
anchored to intermediary or facilitative activity and bears a rational relationship to the
purposes of the Act.
[69] Paragraph (a)(vi) is not a free -standing extension. Any service specified by the
Minister remains subject to paragraph (a)’s opening qualification and must fall within the
PPA’s subject matter and purposes. The power is further conditioned on a Board
recommendation and publication in the Gazette. I am not persuaded that the conferral of
that power is itself irrational or constitutionally overbroad.
[70] Paragraph (b) stands differently. Its inclusion of developers and persons engaged in
selling, marketing, promoting or advertising the listed property interests has an intelligible
connection to the field which the PPA regulates. Developers and commercial m arketers
participate directly in bringing property interests to market, and their activities may affect
consumers, market access and transformation. The fact that they may act in respect of their
own property does not, by itself, render their inclusion irrational.
[71] The difficulty lies in the additional reach of paragraph (b). As interpreted above, it is
also capable of treating a private natural -person owner as a property practitioner merely
also capable of treating a private natural -person owner as a property practitioner merely
because the property disposed of takes the form of a part, unit, section, right or share listed
in the paragraph. A natural person selling a freestanding property belonging to him or her
does not, merely for that reason, fall within paragraph (a), and paragraph (a)(v) expressly
recognises the position of a natural person disposing of property held in a personal
capacity. Paragraph (b) contains no equivalent protection for a natural person who owns a
sectional-title unit, section or other listed interest.
20
[72] The comparison is therefore between private natural -person owners disposing of
their own assets. The fact that one asset is a freestanding property and the other a unit,
section, right or share does not provide a rational basis for treating only the latter owner as
a property practitioner. Section 3(k)'s reference to the affordable and secondary market
does not answer that distinction, because both transactions may occur in the secondary
market.
[73] This conclusion does not deny Parliament's power to regulate sectional -title, time-
share or fractional-ownership transactions. The difficulty is narrower. It lies in attaching the
status and regulatory consequences of a property practitioner to a private owner solely
because of the form of the proprietary interest disposed of.
[74] It may be said that paragraph (b) d oes not differentiate between classes of seller,
but between forms of property interest, and that the preamble’s reference to distortions in
the property market “especially the secondary property market ”, supports broade r
regulation of transactions involving such interests. That explains why Parliament may
regulate those transactions. It does not explain why a private owner making an isolated
disposal should, for that reason alone, become a property practitioner when the same
consequence does not attach to the private owner of a freestanding property.
[75] A second difficulty is not confined to natural persons. Paragraph (b) contains no
equivalent of item (aa) of paragraph (a)(v), which removes from that subparagraph a person
who does not act in the ordinary course of business. Paragraph (b) requires neither gain
nor conduct in the ordinary course of business. It is therefore capable of applying to a juristic
person or trust which is n either a developer nor a commercial marketer of the listed
interests, but sells, markets, promotes or advertises such an interest on an isolated
interests, but sells, markets, promotes or advertises such an interest on an isolated
occasion. A company disposing of the sectional -title unit from which it trades, or a body
corporate disposing of a single unit, is an example. The considerations that rationally justify
the inclusion of developers and commercial mar keters stem from their participation in the
property market as businesses. They do not explain the inclusion of a juristic person or trust
who does not carry on the relevant activity in the ordinary course of business, but merely
disposes of its asset. In that respect, its position is materially indistinguishable from that of
the private owner considered above. I am unable to discern a rational connection between
21
the purposes of the PPA and subjecting such a person to the statutory status and regulatory
consequences of a property practitioner.
[76] A third difficulty arises from paragraph (b) ’s application to a person whose role is
confined to providing a conduit or platform for advertisements. There is a rational distinction
between a person who itself markets, promotes or advertises a property interest as part of
bringing that interest to the market, and one which merely provides the medium through
which another person places an advertisement. The former participates substantively in the
marketing of the property interest . The latter does not market or promote the interest on
behalf of the seller, but merely provides the means by which the seller’s advertisement is
communicated. Paragra ph (b), however, does not draw that distinction. Nor does the
definition of “advertise” cure the difficulty. Its exclusion of “advertising in compliance with
the provisions of any other law” does not distinguish between a person who substantively
markets a property interest and one who merely provides the medium through which
another person advertises it. I am unable to discern a rational connection between the
purposes of the PPA and subjecting a person whose role is confined to providing such an
advertising medium to the regulatory status and regulatory consequences of a property
practitioner.
[77] It was submitted that s 4 addresses these difficulties, as a person brought within the
definition may apply for exemption from compliance with a specific provision of the PPA. I
disagree. An exemption presupposes that the applicant is a property practitioner and
remains subject to the Act until exempted. Section 4(6)(a) provides that an exemption may
not exceed three years and may not be applied retrospect ively, so the relief is neither
permanent nor curative.
[78] Paragraph (c), properly interpreted, does not have the unlimited reach for which
[78] Paragraph (c), properly interpreted, does not have the unlimited reach for which
Sakeliga contends. It applies to a person who, for remuneration, manages the property
on behalf of another. That is different from merely performing a discrete service of care,
maintenance or upkeep in relation to the property. The latter does not, without more,
amount to managing the property. Remunerated property management is a recognised
property-sector activity capable of affecting owners, tenants and other consumers and of
22
engaging the regulatory concerns addressed by the PPA. I am therefore not persuaded
that the inclusion of such activity lacks a rational connection to the purposes of the Act.
[79] Paragraph (d) is still more closely tied to paragraph (a). It reproduces the central
limiting features of acquisition of gain, holding out as a business, acting on the instructions
of or on behalf of another, and performing a paragraph (a) activity. Treating a trust through
which such activity is conducted as a property practitioner is rationally connected to the
regulation of the activity itself; the use of the trust form does not alter the nature of the
underlying property-practitioner activity.
[80] The final question is whether there is a rational basis for extending the definition, for
the specified statutory purposes, to persons identified in paragraph (e). In my view there is.
Each category has a defined connection to an existing property-practitioner business. The
person either performs regulated activities on its behalf, occupies a position of responsibility
within it, or manages, supervises or controls its operations. The extension therefore
reaches persons through whom the regulated enterprise acts or by whom its activities are
directed or controlled.
[81] It is rational for the regulatory scheme to operate not only against the property -
practitioner enterprise itself, but also, for identified purposes, against the persons through
whom that enterprise conducts its regulated activities. Otherwise , provisions directed at
certification, conduct, supervision and accountability could operate at the level of the
enterprise while excluding the individuals who actually perform or control the relevant
activity. The extension in paragraph (e) therefore bear s a rational relationship to the
effective regulation of property-practitioner businesses and the protection of those who deal
with them.
[82] That conclusion is not altered because every listed section may not have the same
[82] That conclusion is not altered because every listed section may not have the same
practical application to every category of person identified in paragraph (e). The extension
makes those persons property practitioners only for the purposes of the specified sections;
each section must still operate according to its own terms. The fact that a particular
provision has limited application to a particular category does not render the legislative
extension itself irrational.
23
[83] I am therefore not persuaded that the rationality challenge succeeds in relation to
paragraphs (a)(iv), (a)(v), (a)(vi), (c), (d) or (e). Paragraph (b) is different in three limited
respects. Although its application to developers, promoters and persons substantively
engaged in commercial property marketing is rati onally connected to the purposes of the
PPA, I am unable to identify a rational connection between those purposes and treating as
a property practitioner: (i) a private natural-person owner merely because of the legal form
of the property interest disposed of; (ii) a person, whether natural or juristic, who sells,
markets, promotes or advertises such an interest otherwise than in the ordinary course of
business; or (iii) a person whose role is confined to providing a medium or conduit for
another’s advertisement. To that extent, paragraph (b) fails the rationality requirement.
[84] The challenge based on vagueness does not justify a broader declaration of
invalidity. On the interpretations adopted above, the impugned provisions have a
sufficiently ascertainable meaning. The fact that non -compliance with the certification
regime may attract serious consequences, incl uding criminal consequences, requires the
provisions to be construed with care, but does not render paragraphs (a)(iv) to (e), as
interpreted, void for vagueness.
Section 22
[85] Applying the distinction identified above, classification as a property practitioner
does not, without more, establish an infringement of occupational freedom. The question is
whether the regulatory consequences of that classification , viewed objectively, negatively
affect the choice of the relevant trade, occupation or profession, including the ability to enter
or remain in it, or merely regulate the manner in which it is practised.
[86] The papers do not establish that persons rationally brought within the challenged
parts of the definition are, by classification alone, unable to enter or continue their
parts of the definition are, by classification alone, unable to enter or continue their
occupations. Compliance with a licensing and regulatory regime ordinarily regulates
practice. Sakeliga’s training objection is more specific. It contends that persons newly
brought within the definition could not lawfully continue their existing occupations because
the education and training requirements carried over from the former regime applied to
estate agents, while no corres ponding route to qualification had been established for the
24
newly included categories. On that basis, it says that such persons could neither regularise
their position nor obtain the Fidelity Fund certificate required for lawful practice.
[87] The definition does not create a single, functionally uniform occupation of ‘property
practitioner’. It brings materially different activities within one framework and, in paragraph
(e), only for specified purposes. Section 50(b)(ii) disqualifies a propert y practitioner who
does not comply with ‘the prescribed standard of training’ from being issued with a Fidelity
Fund certificate. Regulation 33 supplies the framework for those standards. It requires the
Authority, after consultation with representative bodies in the various industries, to establish
qualification standards, course materials, examinations and practical -training standards,
and expressly permits those requirements to vary according to industry.
[88] Regulation 33 is thus not framed on the basis of one undifferentiated standard for
every property practitioner. It applies only to natural persons, permits requirements to vary
by industry, allows industry representative bodies to seek variations to accomm odate
specific industry requirements, and provides for exemptions based on existing
qualifications. The regulatory framework therefore contemplates differentiated training
appropriate to different categories rather than the automatic application of estate -agent
requirements to all property practitioners.
[89] The existence of that framework does not establish that appropriate standards had
in fact been developed for every newly included category when this application was
brought. Sakeliga's contention cannot therefore be answered on the basis that an existing
standard was capable of being met. But that does not establish that the definition itself
impermissibly limits occupational choice. The alleged obstacle lies, if anywhere, in whether
the training framework contemplated by s 50(b)(ii) and regulation 33 had been implemented
the training framework contemplated by s 50(b)(ii) and regulation 33 had been implemented
for those categories. Neither s 50(b)(ii) nor regulation 33 is challenged on that basis. On
the case as pleaded, the training objection therefore does not justify invalidating the
definition. The position is different where the Act itself i mposes a condition which must be
satisfied before the Fidelity Fund certificate necessary for lawful practice may be issued.
That issue arises under s 50(a)(x).
Section 50(a)(x)
25
The function of the Fidelity Fund certificate
[90] Section 50(a)(x) presents a different question. The Fidelity Fund and the certificate
regime are related but not identical. The certificate is the statutory gateway to lawful
practice: s 48 prohibits a person from acting as a property practitioner without it, and s 50
contains disqualifications extending beyond trust -account risk. There is therefore nothing
inherently irrational in Parliament using the certificate regime to secure compliance with
other legitimate objects of the PPA, including transformation.
[91] That conclusion does not determine the validity of the particular condition chosen in
s 50(a)(x). Where possession of a specified document is made an absolute condition for
obtaining the certificate without which a person may not lawfully practise, the law must
identify that condition with reasonable certainty and in a form capable of coherent
application. The question is therefore not whether transformation may permissibly be linked
to licensing. It is whether the requirement actually enacted - possession of a “valid BEE
certificate” - has an ascertainable legal meaning and bears the required relationship to the
transformation object relied upon.
[92] The Authority says Sakeliga’s challenge is misdirected because s 50(a) contains ten
disqualifications, of which only paragraph (x) is attacked, while provisions such as the
requirement for a valid tax clearance certificate remain unchallenged. That does not answer
the challenge. The validity of s 50(a)(x) must be determined on its own terms. The
comparison is in any event instructive: a tax clearance certificate is an identifiable
instrument issued by an identified organ of state under an identified legal f ramework. The
difficulty with s 50(a)(x) is that its required instrument is not similarly identified.
The meaning of “valid BEE certificate”
[93] Section 50(a)(x) provides that the Authority may not issue a Fidelity Fund certificate
[93] Section 50(a)(x) provides that the Authority may not issue a Fidelity Fund certificate
to any person who is not “in possession of a valid BEE certificate”. The PPA does not define
that expression.
26
[94] The statutory context does not supply the meaning. Neither does the applicable B -
BBEE framework . The Amended Property Sector Code 21 recognises different forms of
proof of B-BBEE status according to the category of enterprise. In particular, paragraph 8.6
provides for an exempted micro enterprise to establish the relevant matters by sworn
affidavit or a certificate issued by the Compan ies and Intellectual Property Commission,
and paragraph 9.3.3 makes corresponding provision for a qualifying small enterprise which
is at least 51 per cent black owned. The transformation framework therefore does not
proceed on the basis that every person or enterprise to whom it applies must possess one
uniform document called a “BEE certificate”.
[95] The respondents themselves do not attribute a single meaning to the expression. In
its answering affidavit the Authority describes it as a certificate issued by an accredited
agent and valid for the period stated in it. In its heads it submits that the req uirement may
also be satisfied by a sworn affidavit contemplated in the B -BBEE framework. The NPF
similarly states in its affidavit that smaller enterprises may comply by affidavit, while larger
entities require verified certificates, but in its heads, it describes the document without
qualification as a certificate issued by an accredited B -BBEE verification agency. The
differences concern not merely terminology, but the instrument required, the persons from
whom it is required and the manner in which compliance is established.
[96] The administration of the provision illustrates the same uncertainty. Sakeliga records
that the Authority reminded principal property practitioners of s 50(a)(x) on 13 February
2024. At a compliance webinar on 13 March 2024 it stated that natural persons w ere
exempt, but thereafter rejected applications not accompanied by certificates issued by
SANAS-accredited verification agencies and treated certificates below Level Eight under
SANAS-accredited verification agencies and treated certificates below Level Eight under
the Property Sector Scorecard as invalid. On 13 August 2024 the Authority advised industry
bodies that it was reviewing its position because it had been advised that “valid” did not
mean “compliant”.
[97] The Authority admits that the August letter emanated from it, but denies that the
provision is unintelligible and contends that what was said at the webinar is irrelevant. Its
21 Amended Property Sector Code , published under Government Notice 560 in Government
Gazette 40910 of 9 June 2017 , issued under s 9(1) of the Broad -Based Black Economic
Empowerment Act 53 of 2003
27
conduct is not under review, and I make no finding as to its lawfulness. It is relevant only
because the body charged with administering the provision adopted materially different
understandings, within a relatively short period, of both what document was required and
from whom.
[98] The regulations do not remove the uncertainty. Regulation 21.2 and the prescribed
application form merely repeat the requirement that an applicant possess a “valid BEE
certificate”. They do not identify the document. Nor can subordinate legislation alter
Parliament’s requirement of a certificate into a requirement satisfied by either a certificate
or a sworn affidavit.
[99] The provisions concerning natural persons do not alter that conclusion. Section
50(a)(x) applies to “any person”. Regulations 41.20 and 41.21 create instead a mechanism
under which a natural person applying for a Fidelity Fund certificate is deemed to have
applied for exemption and the Authority must, by default, grant it. That is an exemption from
the statutory requirement, not an indication that natural persons fall outside its terms.
[100] Reliance on terminology used in other sector codes takes the matter no further.
Those instruments demonstrate that concepts such as a “B -BBEE verification certificate”
can be defined expressly when that is what is intended. Section 50(a)(x) does not use that
expression. It requires a “valid BEE certificate”. A definition appearing elsewhere cannot
supply words Parliament did not enact.
[101] The practical significance is heightened by the breadth of the statutory definition of
“property practitioner”. Paragraph (e) extends that definition, for purposes including s 48,
to specified directors, members, trustees and employees. Section 48 in turn prohibits a
person falling within its reach from rendering services without the requisite Fidelity Fund
certificate. The uncertainty in s 50(a)(x) therefore concerns access to the statutory
certificate. The uncertainty in s 50(a)(x) therefore concerns access to the statutory
entitlement to practise and is not confined to conventional estate-agency enterprises.
[102] The NPF relies on the principle that legislation reasonably capable of a
constitutionally compliant interpretation should be given that meaning. That principle is not
in dispute. But interpretation cannot become legislation . Chisuse makes clear both that
28
statutory language must not unnecessarily be rendered ineffective merely because it is
obscure, and that a court may not rewrite legislation under the guise of interpretation.22
[103] The difficulty here is not that the legislative object is obscure. The transformation
objective is evident. What the text does not determine is the mechanism chosen to advance
it. To sustain s 50(a)(x), the Court would have to decide whether the required proof is a
verification certificate, a sworn affidavit, a CIPC certificate or some other recognised
instrument; identify the persons from whom it is required; and determine what, if any, level
of B-BBEE status the document must establish. Those choices are not supplied by the
statutory text. They are matters of legislative design.
[104] The difficulty is accordingly not merely one of interpretative complexity. Section
50(a)(x) makes possession of a “valid BEE certificate” a condition for the issue of a Fidelity
Fund certificate, but neither the PPA nor the applicable statutory framework i dentifies with
reasonable certainty what document is required, from whom it is required, or what
substantive standard must be satisfied for the document to be “valid”. Those affected by
the provision, and the Authority charged with administering it, cannot determine those
matters from the legislation with reasonable certainty. Applying the principles stated above,
s 50(a)(x) therefore fails the requirement of legal certainty inherent in the rule of law.
Section 22
[105] There is, in addition , the effect of the provision on the freedom protected by s 22.
Section 48 prohibits a person from acting as a property practitioner without a Fidelity Fund
certificate, while s 50(a)(x) precludes the Authority from issuing such a certificate unless
the applicant is in possession of a “valid BEE certificate”. The requi rement therefore
operates as a condition of lawful practice. Where a statutory condition may prevent a
operates as a condition of lawful practice. Where a statutory condition may prevent a
person from obtaining the authorisation necessary to enter or remain in an occupation, it
goes beyond regulating the manner in which the occupation is practised and may negatively
affect occupational choice in the sense contemplated in Affordable Medicines, supra.
22 At paras 54-59.
29
[106] The difficulty is not merely that an applicant must satisfy a regulatory requirement.
An applicant may be prevented from obtaining the authorisation necessary for lawful
practice because he or she cannot determine from the legislation what documentary
requirement must be satisfied. The uncertainty therefore operates at the point of entry into,
or continuation in, the occupation and not merely in relation to the manner in which it is
practised. Section 50(a)(x) consequently negatively affects the freedom protected by s 22.
As explained above, the exemption route does not resolve the issue.
[107] That limitation must accordingly be justified under s 36. Transformation is an
important constitutional and statutory objective. The Authority submits that the limitation is
reasonable and justifiable because a property practitioner need only obtain a valid B-BBEE
certificate and that no less restrictive means are available. The NPF advances substantially
the same position.
[108] The NPF also relies on s 9(2) of the Constitution. That provision confirms the
constitutional legitimacy of measures designed to advance persons disadvantaged by
unfair discrimination. It does not, however, answer whether the particular means chosen
by Parliament are sufficiently defined and constitutionally permissible.
[109] Those submissions address the legitimacy of the objective, but not the means
chosen to achieve it. Neither respondent explains why the transformation objective requires
a condition expressed in terms that do not define the required document, provide the
substantive standard to be met, or the forms of proof by which compliance may be
established.
[110] The transformation objective may permissibly be pursued through legislation which
identifies the documentary requirement, the persons to whom it applies and the substantive
standard to be met. Section 50(a)(x) does not do so. The limitation it imposes on t he
standard to be met. Section 50(a)(x) does not do so. The limitation it imposes on t he
freedom protected by s 22 has therefore not been shown to be reasonable and justifiable
under s 36. This provides an additional and independent basis for the conclusion that s
50(a)(x) is constitutionally invalid.
Remedy
30
[111] Section 172(1)(a) requires invalidity to be declared only to the extent of the
constitutional inconsistency. The two successful challenges require different remedies.
Reading-in and notional severance are available only where a provision cannot be
preserved by a reasonable, constitutionally compliant interpretation.23
[112] Paragraph (b) has a constitutionally unobjectionable core in its application to
developers, promoters and persons commercially selling, marketing, promoting or
advertising the listed interests. The defect lies in its extension beyond that field. On its
ordinary wording it is capable of including a natural person who sells, markets , promotes
or advertises his or her own unit, section or other listed interest in the secondary market,
although that person is not engaged in property development or in the business of selling
or marketing such interests.
[113] It is also capable of including a person whose involvement goes no further than
carrying, hosting, publishing or disseminating an advertisement placed by another person.
It is capable, in addition, of including a person, whether natural or juristic, who sells,
markets, promotes or advertises such an interest otherwise than in the ordinary course of
business. In none of these cases does the paragraph require gain, conduct in the ordinary
course of business, an intermediary function or any comparable connection to commercial
property activity. Striking the paragraph down in its entirety would therefore exceed the
inconsistency found.
[114] None of these difficulties can be removed by interpretation alone. Paragraph (b)
expressly extends to “any person” who performs the listed acts and contains none of the
qualifications that would exclude any of those categories. To construe it as though such
limitations were already present would require the Court to add restrictions which
Parliament did not enact.
[115] Importing the whole of paragraph (a)’s opening qualification would also be
[115] Importing the whole of paragraph (a)’s opening qualification would also be
inappropriate. It would make action on the instructions of or on behalf of another a condition
of paragraph (b) and would thereby exclude, among others, a developer marketing units in
its own development, whose inclusion I have found rational. The remedy must therefore
23 Chisuse at para 55.
31
preserve paragraph (b)’s legitimate application to development and commercial property
activity while removing only the extensions that give rise to the constitutional defect. That
accords with the requirement that a reading -in should not interfere with the legislative
scheme more than is necessary.24
[116] The first appropriate distinction is between activity undertaken in the course of
property development or a business involving the sale, marketing, advertising or promotion
of the listed interests, and the disposal by a natural person of his or her own property
interest outside that context. Paragraph (b) should therefore be declared invalid to the
extent that it includes a natural person who sells, markets, promotes or advertises a listed
part, unit or section of a property or property development, or a right or share in such
property or property development, where that part, unit, section, right or share belongs to
him or her in his or her personal capacity, where that person does not do so in the course
of property development or a business involving the sale, marketing, promotion or
advertising of such interests and would not otherwise be a property practitioner as defined
in the Act.
[117] A further qualification is required which is not confined to natural persons. Paragraph
(b) should also be declared invalid to the extent that it includes a person who sells, markets,
promotes or advertises a part, unit, section, right or share in property otherwise than in the
ordinary course of business. That qualification mirrors item (aa) of paragraph (a)(v). It
leaves untouched the application of paragraph (b) to developers, promoters and persons
who deal in the listed interests as a business, and it removes from the paragraph only those
who do not participate in the property market as a business at all.
[118] The advertising-conduit problem requires a separate qualification. The defect does
not arise from the inclusion of persons who themselves advertise or promote property as
not arise from the inclusion of persons who themselves advertise or promote property as
part of a commercial property activity. It arises where the person’s role goes no further than
carrying, hosting, publishing or disseminating an advertisement placed by another.
Paragraph (b) should therefore also be declared invalid to the extent that it includes a
person whose involvement goes no further than carrying, hosting, publishin g or
disseminating an advertisement placed by another person, and who does not otherwise
24 Chisuse at para 55.
32
participate in the sale, marketing, promotion or advertising of the property or property
interest concerned.
[119] When deciding whether to read words into a statute, a court must satisfy the criteria
identified in National Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others.25 The proposed reading-in meets those requirements. The qualifications
are capable of precise formulation and are not foreign to the legislative scheme. The first
and third reproduce, with the necessary adaptation, the exclusions which Parliament itself
enacted in items (bb) and (aa) of paragraph (a)(v). The second gives effect to the distinction
identified above between substantive participation in property marketing and me rely
providing the medium through which another person advertises. Together they remove only
the irrational applications identified above, while preserving the operation of paragraph (b)
in relation to developers, promoters and others substantively engaged in commercial
property marketing.
[120] Parliament should be afforded an opportunity to correct paragraph (b). The
declaration of invalidity should be suspended for 24 months from the date of confirmation
by the Constitutional Court. A suspension unaccompanied by interim relief would leave the
persons identified above subject to the statutory status of property practitioner, and to the
consequences which attach to acting without a Fidelity Fund certificate, for a further two
years in respect of conduct that cannot rationally attract that status. If Parliament does not
correct the constitutional defect within the period of suspension, the reading -in should
continue to operate until constitutionally compliant legislation comes into force.
[121] During the period of suspension, paragraph (b) should be read as excluding - (i) a
natural person who sells, markets, advertises or promotes his or her own listed property
natural person who sells, markets, advertises or promotes his or her own listed property
interest otherwise than in the course of property development or a business involving the
sale, marketing, advertising or promotion of such interests, and who would not otherwise
be a property practitioner as defined in the Act; (ii) a person whose involvement goes no
further than carrying, hosting, publishing or disseminating an advertisement placed by
another person, and who does not otherwise participate in the sale, marketing, promotion
or advertising of the property or property i nterest concerned; and, (iii) a person who sells,
25 2000 (2) SA 1 (CC) at paras 74-75.
33
markets, advertises or promotes such an interest otherwise than in the ordinary course of
business, and who would not otherwise be a property practitioner as defined in the PPA.
[122] Section 50(a)(x) cannot be cured by severance or reading -in. Any such remedy
would require the Court to select the relevant proof of B -BBEE status, identify the person
or entity from whom this is required, and determine the applicable substantive standard.
Those are legislative choices, not matters of interpretation. To supply them would create a
new compliance mechanism and exceed the limits of permissible reading-in.
[123] Section 50(a)(x) must therefore be declared invalid in its entirety, leaving Parliament
to decide whether and on what terms a transformation -related condition should attach to
Fidelity Fund certification. Because continued enforcement would permit certific ates to be
withheld under a constitutionally defective provision, the declaration should not be
suspended. It should operate prospectively and not affect Fidelity Fund certificates already
issued.
[124] Both declarations concern an Act of Parliament and have no force unless confirmed
by the Constitutional Court under s 172(2)(a). The suspension and the reading-in which will
operate following confirmation are made under s 172(1)(b) as just and equitable re lief.
Pending the decision of the Constitutional Court, temporary relief is warranted under s
172(2)(b) to prevent the provisions found constitutionally defective from continuing to
produce the consequences identified above.
[125] The challenge to paragraphs (a)(iv), (a)(v), (a)(vi), (c), (d) and (e) is dismissed. The
challenge to paragraph (b) succeeds only to the limited extent identified above, and the
challenge to s 50(a)(x) succeeds.
Costs
[126] The costs enquiry is governed by Biowatch Trust v Registrar Genetic Resources and
Others.26 As a general rule, a private litigant achieving substantial success in constitutional
proceedings against the State should receive its costs. Sakeliga has achieved substantial
26 2009 (6) SA 232 (CC) at para 24.
34
success: it succeeds entirely on s 50(a)(x) and, although on narrower grounds, in relation
to paragraph (b).
[127] Sakeliga’s failure on paragraphs (a)(iv), (a)(v), (a)(vi), (c), (d) and (e) does not justify
apportionment. Those issues formed part of a closely related challenge to the reach and
consequences of the same definition and cannot sensibly be separated for costs. There is
no conduct warranting departure from Biowatch. The first respondent opposed the
constitutional relief and should bear Sakeliga’s costs.
[128] The second and third respondents abided. The fourth respondent intervened to
defend the legislation, principally on transformation grounds. Consistently with the
approach to private parties participating in constitutional litigation, I make no costs order for
or against it on the merits.
[129] The late delivery of the fourth respondent’s answering affidavit is different. It was
about two weeks late and required Sakeliga to file a further replying affidavit. The fourth
respondent sought and obtained condonation and should bear the costs occasioned by the
late delivery, including the further replying affidavit.
[130] The applicant was represented by two counsel. Given the importance and
complexity of the matter, the employment of two counsel was warranted. The first and fourth
respondents are accordingly ordered to pay the applicant’s costs, on the terms set out in
the order, including the costs of two counsel where so employed, on scale C.
ORDER
In the result, the following order is granted:
1. The late filing of the fourth respondent’s answering affidavit is condoned.
2. Paragraph (b) of the definition of “property practitioner” in s 1 of the Property
Practitioners Act 22 of 2019 (the Act) is declared inconsistent with the Constitution
and invalid to the extent that it includes –
(a) a natural person who sells, markets, promotes or advertises a part, unit or
section of, or rights or shares in, a property or property development wh ere
35
the part, unit, section , right or share belongs to him or her in his or her
personal capacity, where that person does not do so in the course of property
development or a business involving the sale, marketing , advertising or
promotion of such interests, and w ho w ould not otherwise be a property
practitioner as defined in the Act;
(b) a person whose involvement goes no further than carrying, hosting,
publishing or disseminating an advertisement placed by another person in
respect of a part, unit or section of, or rights or shares in, a property or
property development, and who does not otherwise participate in the sale,
marketing, promotion or advertising of that property interest;
(c) a person who sells, markets, promotes or advertises a part, unit or section
of, or rights or shares in, a property or property development otherwise than
in the ordinary course of business, and who would not otherwise be a property
practitioner as defined in the Act.
3. The declaration of invalidity in paragraph 2 is suspended for 24 months from the
date of confirmation by the Constitutional Court, to enable Parliament to correct the
defect.
4. During the period of suspension, paragraph (b) of the definition of “property
practitioner” in s 1 of the Property Practitioners Act 22 of 2019 is to be read as though
the following words appeared at the end thereof:
“but does not include –
(i) a natural person who sells, markets, promotes or advertises a part, unit or
section of, or rights or shares in, a property or property development wh ere
that part, unit, section , right or share belongs to him or her in his or her
personal capacity, where that person does not do so in the course of property
development or a business involving the sale, marketing , advertising or
promotion of such interests, and who would not otherwise be a property
practitioner as defined in the Act; or
(ii) a person whose involvement goes no further than carrying, hosting,
(ii) a person whose involvement goes no further than carrying, hosting,
publishing or disseminating an advertisement placed by another person in
respect of a part, unit or section of, or rights or shares in, a property or
36
property development, and who does not otherwise participate in the sale,
marketing, promotion or advertising of that property interest; or
(iii) a person who sells, markets, promotes or advertises a part, unit or section of,
or rights or shares in, a property or property development otherwise than in
the ordinary course of business, and who would not otherwise be a property
practitioner as defined in the Act.”
If Parliament does not correct the constitutional defect within the period referred to
in paragraph 3, the reading -in in this paragraph shall continue to operate until
legislation correcting the defects comes into force.
5. Section 50(a)(x) of the Property Practitioners Act 22 of 2019 is declared inconsistent
with the Constitution and invalid.
6. The declaration of invalidity in paragraph 5 operates prospectively from the date of
confirmation by the Constitutional Court and does not affect the validity of any
Fidelity Fund certificate issued before that date.
7. The declarations of invalidity in paragraphs 2 and 5 are referred to the Constitutional
Court for confirmation in terms of s 172(2)(a) of the Constitution.
8. Pending the decision of the Constitutional Court, and in terms of s 172(2)(b) of the
Constitution:
(a) paragraph (b) of the definition of “property practitioner” is to be read as set out in
paragraph 4 above; and
(b) the first respondent may not refuse to issue a Fidelity Fund certificate solely by
reason of s 50(a)(x) of the Property Practitioners Act 22 of 2019.
9. Save as set out above, the application is dismissed.
10. The first respondent is ordered to pay the applicant’s costs, including the costs of
two counsel where so employed, on scale C , save for the costs to be paid by the
fourth respondent as determined below.
11. The fourth respondent is ordered to pay the costs occasioned by the late delivery of
its answering affidavit, including the costs of the applicant’s further replying affidavit,
on scale C.
37
12. The Registrar of t his Court is directed to comply with Constitutional Court Rule 16
by lodging a copy of the order and judgment with the Registrar of the Constitutional
Court within 15 days of this order.
____________________________
E VAN DER SCHYFF
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
For the applicant: Adv. P Ellis SC
With: Adv. JL Verwey
Instructed by: Kriek Wassenaar & Venter Inc.
For the first respondent: Adv. WR Mokhare SC
With: Adv. MR Maphutha
Instructed by: Chitha Inc.
For the fourth respondent: Adv. M Ramaili SC
With: Adv. K Maponya
And: Adv. S Mutemwa
Instructed by: Kgobokoe & Company Inc.
Date of the hearing: 5 June 2026
Date of judgment: 8 September 2026