Auction Alliance wins legal challenge on estate agency inspections

Auction Alliance has won a constitutional challenge against laws that allow for targeted, non-routine inspections of estate agencies without a warrant.

Judge Willem Louw declared a section of the Estate Agency Affairs Act (EAAA), as well as the Financial Intelligence Centre Act (Fica), inconsistent with the constitution and invalid in a ruling in the Western Cape High Court on Friday.

Auction Alliance took the matter to court after the Estate Agency Affairs Board conducted search-and-seizure operations at its premises in March last year.

While the board's inspectors did not have search-andseizure warrants to inspect Auction Alliance's offices, it relied on the impugned pieces of legislation - section 32A of the EAAA and section 45B of Fica.

The board argued that the legislation gave it the power to conduct non-routine, targeted inspections - where there was already suspicion of wrongdoing - without warrants.

This enabled it to regulate the estate agency industry effectively.

First obtaining a warrant, it contended, might allow time for those being inspected to destroy vital records.

Auction Alliance contended that the legislation infringed on its right to privacy.

Although there was a reduced expectation of privacy in the industry, the targeted, warrantless searches could eventually lead to the laying of criminal charges.

Judge Louw found that the respondents in the case - the board, the minister of trade and industry and the minister of finance - had not shown that requiring a warrant for targeted, non-routine inspections would defeat the purpose of the inspection.

"The need for surprise, which will often be crucial, can be preserved by allowing warrants to be obtained on an ex parte (one-sided) basis and to provide for limited circumstances under which a targeted search may proceed without a warrant," he wrote in his judgment.

Judge Louw declared both sections invalid to the extent that they permitted any inspections other than routine or random inspections without a warrant.

He noted that section 45B of Fica involved "immense public interest considerations" and, therefore, suspended the effect of his order for 18 months to give the legislature time to amend the provisions "so as to make them constitutionally valid".

(The Star)

  Comment on this Article

  Please login to post comments

Post to my facebook wall
Characters remaining

    Latest Property News
    • 21 Feb 2018
      These days most buyers are using online property portals like Private Property when house hunting due to the convenience, up to date information and variety on offer. “The property portals have revolutionised the way buyers shop, but they do need to be cautious – viewing photos online is no replacement for viewing the property in person,” says Bruce Swain, CEO of Leapfrog Property Group.
    • 20 Feb 2018
      Owning a home is a milestone that most South Africans aspire to. Becoming a homeowner is a step towards growing personal wealth and owning an asset that appreciates in value over time, provided of course that the correct principles are applied during the buying stage of the process, says Adrian Goslett, Regional Director and CEO of RE/MAX of Southern Africa.
    • 20 Feb 2018
      The suburb of Greenstone in Johannesburg east came to be over the last two decades. “In the beginning, it was literally just a hill with not so much as a shopping centre,” says Michael Levy, Property Consultant at Jawitz Properties Bedfordview. Today it has plenty shopping facilities and is fully built, boasting high-density, upmarket housing and residential estates, though still has a few pockets poised for commercial development.
    • 20 Feb 2018
      A major shift in the ageing paradigm has precipitated an equally dramatic transformation in the retirement sector, with modern accommodation options worlds away from the conventional model.
    • 19 Feb 2018
      Possibly one of the biggest sources of contention between landlords and tenants surrounds the rental deposit. “Most tenants rely on getting their rental deposits back when moving, so that they can use it to pay a deposit on their new home. Having it withheld or even having large amounts deducted can lead to a lot of distress,” explains Bruce Swain, CEO of Leapfrog Property Group.
    • 19 Feb 2018
      Situated approximately halfway between Johannesburg and Pretoria, Midrand was established in 1981 and forms part of the City of Johannesburg Metropolitan Municipality. It has become one of the major business hubs in the country with major pharmaceutical, textile, telecommunication and motoring giants situated within its boundaries.
    • 19 Feb 2018
      The PayProp Rental Index Annual Review of 2017 shows that the rental market suffered from much volatility during the year. It kicked off with rental growth spiking in January with weighted year-on-year growth (YoY) growth peaking at 8.3% before dropping to 6.34% in July, dipping down to less than 5% in November and then experiencing a slight uptick at 5.75% in December.
    • 19 Feb 2018
      While most homes in cluster complexes, estates and other gated communities come with at least one garage or carport, residents would often like additional permanent parking or storage areas for things like trailers, bikes, boats and caravans.
    Subscribe to the MyProperty Newsletter

    Last Name  
    Email Address  
    Email Frequency
    Share this Page

    For Sale Property
    Rental Property
    More Options
    Connect with us