Taljaard v T L Botha Properties (666/06) [2008] ZASCA 38; 2008 (6) SA 207 (SCA); [2008] 3 All SA 453 (SCA) (28 March 2008)

Taljaard v T L Botha Properties (666/06) [2008] ZASCA 38; 2008 (6) SA 207 (SCA); [2008] 3 All SA 453 (SCA) (28 March 2008)

Section 34A of the Estate Agency Affairs Act does not invalidate the contract of mandate between an estate agent and client when the agent lacks a fidelity fund certificate. The section was enacted to penalize estate agents who breach its requirements by disentitling them from claiming remuneration, but it does not confer a right of action on clients to recover remuneration already paid under a valid contract. The payment made by the appellant was pursuant to a valid contract and is not recoverable by the condictio ob turpem vel iniustam causam. The legislation does not imply a right of recovery absent express provision, and the apparent anomaly of an estate agent retaining remuneration...

Citation
[2008] ZASCA 38
Parties
Appellant: Jean Jacques Taljaard; Respondent: T L Botha Properties
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 March 2008
Case Number
666/06
Procedural Posture
Civil Appeal / Appeal From High Court
Outcome
Appeal dismissed with costs.
Judges
Cameron, Nugent, Cloete, Ponnan, Snyders
Legal Topics
Estate Agency Affairs Act, Fidelity Fund Certificate, Remuneration Entitlement, Contract of Mandate, Condictio Ob Turpem Vel Iniustam Causam
Commercial and Corporate Estate Agency Affairs Act Fidelity Fund Certificate Remuneration Entitlement Contract of Mandate Condictio Ob Turpem Vel Iniustam Causam

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Parties

Jean Jacques Taljaard

Appellant

T L Botha Properties

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court

Legal Issues

  1. 1 Does section 34A of the Estate Agency Affairs Act invalidate the contract of mandate between an estate agent and client if the agent lacks a fidelity fund certificate?
  2. 2 Is a client entitled to recover remuneration paid to an estate agent who performed without a fidelity fund certificate?
  3. 3 Does section 34A confer a right of action for the return of remuneration paid contrary to its provisions?

Ratio Decidendi

Section 34A of the Estate Agency Affairs Act does not invalidate the contract of mandate between an estate agent and client when the agent lacks a fidelity fund certificate. The section was enacted to penalize estate agents who breach its requirements by disentitling them from claiming remuneration, but it does not confer a right of action on clients to recover remuneration already paid under a valid contract. The payment made by the appellant was pursuant to a valid contract and is not recoverable by the condictio ob turpem vel iniustam causam. The legislation does not imply a right of recovery absent express provision, and the apparent anomaly of an estate agent retaining remuneration...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.