Bianca Properties (Pty) Ltd v Mogomana (A113/2019) [2021] ZAGPPHC 606 (17 September 2021)

Bianca Properties (Pty) Ltd v Mogomana (A113/2019) [2021] ZAGPPHC 606 (17 September 2021)

The court held that the respondent's claim for commission arises from acts performed as an estate agent, as defined in section 1 of the Estate Agency Affairs Act. The respondent was employed by the appellant and performed property transactions without possessing a valid fidelity fund certificate. Section 34A(2) of...

Source-derived case information.

Citation
[2021] ZAGPPHC 606
Parties
Appellant: Bianca Properties (Pty) Ltd; Respondent: Matseba Mogomana
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 September 2021
Case Number
A113/2019
Procedural Posture
Civil Appeal / Appeal Against Judgment and Order on Special Plea
Outcome
Appeal upheld; special plea succeeds.
Judges
Van der Schyff, Van der Westhuizen, Neukircher
Legal Topics
Estate Agency Affairs Act, Fidelity Fund Certificate, Commission Claims, Unenforceable Contracts
Commercial and Corporate Land and Property Estate Agency Affairs Act Fidelity Fund Certificate Commission Claims Unenforceable Contracts

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Parties

Bianca Properties (Pty) Ltd

Appellant

Matseba Mogomana

Respondent

Procedural Posture

Civil Appeal / Appeal Against Judgment and Order on Special Plea

Legal Issues

  1. 1 Does section 34A of the Estate Agency Affairs Act 112 of 1976 preclude the respondent from claiming commission or payment in the absence of a valid fidelity fund certificate?
  2. 2 Is possession of a valid fidelity fund certificate a prerequisite for an estate agent to enforce a claim for payment of commission or remuneration?
  3. 3 Does section 34A apply to agreements between estate agents inter se, or only to agreements between estate agents and clients?

Ratio Decidendi

The court held that the respondent's claim for commission arises from acts performed as an estate agent, as defined in section 1 of the Estate Agency Affairs Act. The respondent was employed by the appellant and performed property transactions without possessing a valid fidelity fund certificate. Section 34A(2) of the Act precludes any person employed as an estate agent from claiming remuneration for such acts unless a valid certificate has been issued. The court agreed with the Full Court in Warren Jack Property Brokers CC v Venter that section 34A applies to agreements between estate agents inter se, and not only to agreements with clients. The absence of a fidelity fund certificate...

Court Disposition

Appeal upheld; special plea succeeds.

Orders

  • The appeal is upheld, with costs.
  • The order granted by Mtati AJ on 16 February 2018 is set aside and replaced with: 'The defendant’s special plea is upheld, with costs.'