Estate Agents Board v Lek

• Jurisdiction: South Africa
• Judge: Rumpff CJ, Trollip JA, Corbett JA, Joubert JA and Hoexter AJA
• Judgment Date: 28 May 1979
• Hearing Date: 22 March 1979
• Court: Appellate Division

Trollip JA:

The effect of the Estate Agents Act 112 of 1976 ("the Act") is E that henceforth no person can perform any act as an estate agent unless, inter alia, a valid "fidelity fund certificate" has been issued to him (s 26 (a)). To get such a certificate he has to apply in the prescribed manner to the Estate Agents Board (s 16 (1)). This is a body (herein called "the Board") that is set up under the Act (see chap 1) to maintain and promote the integrity of estate agents in the Republic (s 7). If the F Board is satisfied that the requirements of the Act have been duly complied with, it must issue the certificate, which is valid until 31 December of the year to which the application relates (s 16 (2)). A certificate shall not be issued, or if issued be valid, unless the provisions of the Act have been complied with (s 16 (3)). Section 27 G disqualifies certain persons from getting such certificates, including one who has at any time been convicted of an offence involving an element of dishonesty. In such a case, according to the proviso to the section, the Board may nevertheless issue a certificate if it is satisfied, "with due regard to all the relevant considerations", that it will be "in the interest of justice" to do so. According to s 31, as amended, the person who feels aggrieved by the Board's decision may, after obtaining its H reasons for such decision, "appeal to the court" against it. In s 1 "court" is defined as meaning

"a court of the provincial or local division of the Supreme Court of South Africa having jurisdiction..."

The respondent has been in business as an estate agent for many years. Since 1968 he has successfully carried on such business in Cape Town, where he also resides. On 22 June 1977 he applied, through his attorney, to the Board for the necessary certificate to enable him to continue carrying on his business there. The application was accompanied by an

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explanatory letter. Therein he disclosed that he had been convicted of theft in 1949 and fraud in 1967. For the theft he received a suspended A sentence, and for the fraud he was sentenced to a fine of R60 and, in addition, one month's imprisonment suspended. In the present proceedings he alleged that he had been wrongly convicted in both cases, and that, in any event, the offences were trivial. On 13 July 1977 the Board informed respondent by letter that his application had been declined and that from B 1 August 1977 it would be an offence under the Act to carry on business as an estate agent without the fidelity fund certificate. On being requested under s 31 of the Act for the reasons for its decision, the Board merely said (on 10 August 1977) that respondent was disqualified under s 27 (b) from getting a certificate and that it was not satisfied that the issue of one to him would be in the interest of justice.

C The respondent thereupon "appealed" under s 31 to the Cape of Good Hope Provincial Division ("the Court a quo") for relief by way of notice of motion citing the Board as respondent. The Board opposed the "appeal". The Court a quo (VAN ZIJL JP and FRIEDMAN J) set aside the Board's decision with costs and remitted the matter to it for further consideration. The judgment is reported in 1978 (3) SA 160.

The issues canvassed in the Court a quo were:

(a)

D Whether that Court had jurisdiction to entertain the cause in view of the fact that the Board's place of business or residence was in Johannesburg.

(b)

E Whether the Board was validly constituted at all relevant times and especially when it decided on respondent's application on or about 13 July 1977, since in terms of s 37 the State President had fixed the date for the commencement of the Act as 1 August 1977.

(c)

Whether the Board gave respondent a proper hearing before deciding to refuse the certificate.

F The Court a quo decided issues (a) and (b) in the affirmative, ie that it had jurisdiction and that the Board was validly constituted, but decided (c) in respondent's favour and made the orders just mentioned.

The Board appealed to this Court. But in the meantime the Estate Agents Amendment Act 60 of 1978 was enacted. In terms of s 7 thereof the Board G was deemed to have been established on 7 January 1977, and its acts, performed between the passing and commencement of the original Act, were validated. That effectively eliminated issue (b) from the present appeal. Moreover, during the hearing before us, counsel for the Board wisely abandoned the appeal on the merits, ie in respect of issue (c). Hence we are now only concerned with issue (a) - the jurisdiction of the Court a quo.

H According to the Act, the Board (comprising between nine and 11 members - s 3) is a juristic person (s 2). The funds that accrue to it from the prescribed levies and annual contributions from estate agents, its investments, and other sources, are to be banked, used to defray expenses, and the balance invested (ss 9 and 15). It must keep proper books of account and records (s 10), control and manage the Estate Agents' Fidelity Fund (ss 12, 13, 17 and 18), and receive and consider applications for fidelity fund certificates (s 16). It may enter into insurance contracts to indemnify itself against having to pay any claims in terms of the Act

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(s 23). The Act does not say where in the Republic those activities that constitute its business must be carried on. Section 4 (1) merely says that the Board shall meet at such times and places as the chairman, or, in his A absence, the vice-chairman may determine. It would therefore appear that the Board itself can determine where it will locate its place of business. According to its replying affidavit in these proceedings, that place is Johannesburg, where all its business activities are carried on and meetings of the Board have hitherto taken place.

B Hence it was common cause that the Board "resided" in Johannesburg and that the Transvaal Provincial or Witwatersrand Local Division, as the forum rei, was a "court having jurisdiction", in terms of the definition of "court" in s 1 of the Act, in respect of these proceedings. Indeed, the Court a quo so held - see 1978 (3) SA at 166F - H. The questions that C still arise are: was that jurisdiction of the Transvaal Courts exclusive, and, if not, did the Court a quo in particular also have jurisdiction? The answers to those questions depend upon the relevant provisions of the Supreme Court Act 59 of 1959 as amended ("the SC Act of 1959"). That is the current statute governing the system of our Supreme Court, its several Divisions, and their respective jurisdictions and powers. According to it D the original jurisdiction of each Division is territorial - it is to be exercised within a particular geographical area specified in the First Schedule to the SC Act of 1959 - see ss 6 and 44 thereof. Within that area it has jurisdiction over the persons and causes mentioned in s 19. That jurisdiction is also referred to in the Republic's Constitution Act 32 of E 1961 s 94 (2). According to s 19 (1) of the SC Act of 1959 it has original jurisdiction in civil matters:

"in and over all persons residing or being in and all causes arising... within its area of jurisdiction."

No new Division was created or existing Division empowered by that Act to exercise country-wide jurisdiction over persons residing or causes arising F anywhere in the Republic. Hence, in suing a person residing in the Republic, the dominus litis must select the Division within whose area the former is "residing or being" or the "cause arises". This concept of original, territorial jurisdiction is derived from s 30 of the old Cape Charter of Justice 1834 which endowed the Supreme Court of the Cape Colony with jurisdiction

G "in all causes... arising within the said Colony, with jurisdiction over our subjects, and all other persons whomsoever residing and being within the said Colony."

Each of the pre-Union colonial Supreme Courts, which became the respective Divisions of our Supreme Court on the establishment of the Union in 1910 H (see ss 95 and 98 of the South Africa Act 1909), was endowed by the relevant colonial statute with substantially similar jurisdiction, no doubt also derived from s 30 of the Charter. The jurisdictional provisions of these statutes are collected and set out in Pollak The South African Law of Jurisdiction at 7 and 8. After Union these Courts, as Divisions of our Supreme Court, retained that jurisdiction (see s 98 of the South Africa Act). In 1959 the SC Act of 1959 repealed those colonial statutes and those provisions of the South Africa Act relating to the Supreme Court. By s 44 thereof, however, the existing Divisions of the Supreme Court were retained and by s 19 each was

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endowed with the territorial jurisdiction already mentioned. Previous decisions about the meaning of "causes arising" in those colonial statutes A and generally about jurisdiction will, therefore, be applicable in determining problems of jurisdiction arising under the SC Act of 1959. So I now proceed to examine some of those that are relevant.

In Steytler NO v Fitzgerald 1911 AD 295 the dispute concerned a claim for rendering a final liquidation account and payment thereof against one B Steytler. He was joined in the action in the Eastern District Local Division ("EDLD") as co-defendant in his capacity as executor of the estate in question. Since he resided in Cape Town, outside the area of jurisdiction of that Court, it ordered that a certain bond in which he was interested be attached ad fundandam jurisdictionem and that he be cited C edictally. According to s 13 of Act 35 of 1896 (C), read with the South Africa Act, the jurisdiction of the EDLD was concurrent with that of the Cape Provincial Division "in and over all causes arising, and persons residing and being within" its own...