Lek v Estate Agents Board

• Jurisdiction: South Africa
• Judge: Van Zijl JP and Friedman J
• Judgment Date: 18 April 1978
• Hearing Date: 06 March 1978
• Court: Cape Provincial Division

Friedman J:

This is an appeal brought in terms of the Estate Agents Act 112 of 1976 (hereinafter referred to as the Act). Appellant, who resides at Camps Bay, bas practised as an estate agent in Cape Town since about 1968. In terms of the Act it is incumbent upon any person who wishes to practise as an estate agent to obtain a fidelity fund certificate from the Estate Agents Board (respondent). Appellant applied for such a C certificate, but his application was refused. He now appeals to this Court against respondent's refusal. In his notice of appeal he seeks an order directing that a fidelity fund certificate be issued to him or, alternatively, that respondent's refusal to issue a certificate to him be set aside, that the matter be remitted to respondent for further D consideration and that he be granted leave to make such further representations to and place such further information before respondent as he might consider necessary. Respondent opposes the grant of any of the relief claimed.

The relevant facts as they appear from the affidavits filed in support of the appeal, and the answering affidavits filed by respondent's secretary, E one Van Soelen, may be summarised as follows. In 1950 appellant was convicted in Johannesburg on a charge of theft of a motor car and was given a suspended sentence. The precise terms of the sentence do not appear from the papers filed of record. The offence arose out of the activities of a company which dealt in second-hand cars and of which appellant was at the time a director.

F In 1967 appellant was convicted in the magistrate's court at Willowmore on a charge of fraud arising out of the collection by him of donations towards a campaign which had been mounted to raise funds for the Six Day War in Israel, without authorisation from the authorities in charge of the campaign. Appellant was sentenced to a fine of R60 or 60 days' G imprisonment and was sentenced to a further period of one month's imprisonment which was suspended for three years on condition that he was not convicted of an offence involving dishonesty, committed during that period.

The significance of these facts is that s 27 (b) of the Act provides that H no fidelity fund certificate may be issued to an estate agent who has at any time been convicted of an offence involving an element of dishonesty. This disqualification is, however, subject to the proviso to s 27 which is dealt with more fully below.

The application form which an estate agent is required by the regulations framed under the Act to submit to respondent for the issue of a fidelity fund certificate contains 4 question reading as follows:

"13. Have you, at any time, been convicted of an offence involving an element of dishonesty? (Yes or No)... If yes, attach details to this form."

Friedman J

Prior to the submission by him of the prescribed application form, appellant consulted an attorney in Cape Town - one C B Prisman. The latter telephoned Van Soelen, informed him of appellant's previous convictions A and advised him that he wished to come to Johannesburg on behalf of appellant in order to discuss appellant's application with him or with respondent in order to furnish respondent with any information it might require in regard to any query it might have in connection with the matter. In an affidavit filed in support of the appeal, Prisman states B that Van Soelen informed him that this would not be necessary but that all that should be done was for the application form to be completed and to be submitted to respondent and that, if respondent had any difficulties in connection with the matter, it could communicate with him and he could then deal with these difficulties. This allegation is not disputed by Van Soelen. On 22 June 1977 and following on this telephone conversation with C Van Soelen, Prisman addressed a letter to Van Soelen enclosing appellant's application form. The letter ended as follows:

"In view of the facts set out herein we would be grateful if you could grant the certificate. The writer will be only too happy to attend on you personally should you so desire and if there are any queries which you have herein we would be grateful if you would at our expense communicate with us telephonically so that we may deal with these queries."

This letter was received by respondent and not acknowledged.

D The application was considered by respondent at a meeting held in Johannesburg on 11 July 1977, without any further reference either to appellant or to attorney Prisman. By letter dated 13 July 1977 addressed E to appellant in Cape Town, appellant was informed that his application for a fidelity fund certificate had been declined. In response to a letter from appellant's Johannesburg attorneys in which respondent was requested to furnish its reasons for the refusal, Van Soelen wrote as follows on 10 August 1977:

"The Estate Agents Board has instructed me to advise you as follows regarding the reasons for its refusal to issue a fidelity fund certificate to the above-named:

(a)

F The applicant is disqualified in terms of s 27 (b) of the Estate Agents Act 112 of 1976;

(b)

Having considered the applicant's representations and having due regard to all the relevant considerations, the Board is not satisfied that it would be in the interest of justice to issue a fidelity fund certificate to the applicant.

It is regretted that the letter from Messrs Prisman and Wilson of 22 June G 1977 was not acknowledged, but the contents were conveyed to the Estate Agents Board. The reasons why we did not communicate with them further in this matter is because there were no queries relating to Mr Leks application which the Board wanted to make."

In his answering affidavit on behalf of respondent, Van Soelen challenges the jurisdiction of this Court to deal with the appeal. He states that H respondent's only office in' the Republic is situate at Auction House, Fox Street, Johannesburg, that respondent conducts its business and meets at no place other than the above-mentioned address, and that, having regard to the provisions of the Act, the only Courts having jurisdiction to entertain appeals against decisions of the respondent are either the Transvaal Provincial Division or the Witwatersrand Local Division of the Supreme Court.

He submits further that the procedure adopted by appellant is incorrect and that the proper procedure is by way of a review in terms of Rule of Court 53.

Friedman J

After mentioning that appellant's application was considered at a meeting held in Johannesburg on 11 July 1977, Van Soelen goes on to state:

"5.1

It was noted that the appellant was automatically disqualified from receiving a fidelity fund certificate by virtue of the provisions of A s 27 (b) of the Act inasmuch as he had been convicted of two offences involving dishonesty.

5.2

The application was nevertheless duly and fully considered by the respondent and having regard to all the relevant considerations before it the respondent was of the view that it would not be in the interest of justice to issue a fidelity fund certificate to the appellant."

B The final contention raised in Van Soelen's affidavit is that respondent has properly exercised its discretion in terms of the proviso to s 27 of the Act and that the exercise of such discretion is not appealable having regard to the provisions of s 31 of the Act. That section, in so far as is relevant, provides as follows:

"Any person who feels aggrieved by any decision taken by the board in the C exercise of its powers under s 16, 28 or 30 may, within a period of one month after the board -

(a)

has informed him in writing of such decision and upon payment of the prescribed fees, request the board in writing to furnish him in writing with its reasons for such decision;

(b)

has in accordance with para (a) furnished him with its reasons for such decision and after notice to the board, appeal to the Court against such decision, and the Court may thereupon -

(i)

D dismiss the appeal;

(ii)

if it is of the opinion that the board has not acted in accordance with the relevant provision of this Act, give an order opposite to the decision of the board or amending the decision of the board;

(iii)

refer the matter back to the board for further consideration; or

(iv)

give such other order, including any order as to costs, as it may deem fit."

E The first question that arises is whether this Court has jurisdiction to deal with the matter. In regard to the question of jurisdiction Mr Goldstone, who appeared on behalf of respondent, referred to s 31 which provides for an "appeal to the Court" and to the definition of "Court" in s 1, namely:

F "A Court of the Provincial or Local Division of the Supreme Court of South Africa having jurisdiction, or a Judge of any such Court."

He argued that the only Court that has jurisdiction in a matter of this kind is the Court to whose jurisdiction the respondent, as a juristic person, is subject, or the Court having jurisdiction at the place where the meeting in question, ie the meeting where the decision was taken, was held. On this basis he contended that the only Courts having jurisdiction G are the Transvaal Provincial Division or the Witwatersrand Local Division of the Supreme Court.

As will become apparent when the argument on the merits is considered, Mr Dison, who appeared for the appellant - while not abandoning the point H that these proceedings were an appeal - contented himself with arguing that, as there had not been a proper hearing...