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Estate Agency Affairs Board queries 'search invalidity'

The Estate Agency Affairs Board (EAAB) is pleading with the Constitutional Court to suspend the declaration of invalidity of the law governing its work as this would render searches dating as far back as 1997 unlawful.

The board is supported in its bid by Finance Minister Pravin Gordhan and Trade and Industry Minister Rob Davies, to whom the EAAB reports.

In June, the Western Cape High Court found that even though the EAAB had evidence that Auction Alliance had breached the Estate Agency Affairs and Financial Intelligence Centre Acts, both laws were unconstitutional and invalid because they violate the right to privacy by permitting targeted searches without a warrant.

The EAAB admits that the Estate Agency Affairs Act is unconstitutional. But it wants any declaration of invalidity to be purely prospective rather than retrospective.

It is pleading for the declaration of invalidity to be suspended, but Auction Alliance is opposed to this. The EAAB says there are serious allegations substantiated by credible documentary evidence that Auction Alliance and its senior management committed serious breaches of the law for years.

Davies and Gordhan say the high court judgment leaves the EAAB able only to conduct routine compliance searches but powerless to do anything when it has reasonable suspicion of unlawful activities. In the interim, the EAAB wants the Constitutional Court to allow it to use powers set out in the Criminal Procedure Act to investigate any failure to comply with the Estate Agency Affairs Act.

Auction Alliance says the board must not be allowed to obtain a warrant on its own. However, the board believes this approach would hamstrung its ability to conduct investigations.

'This would allow the perpetrators of wrongdoing in the industry to get away with it with impunity.'

The matter will be heard tomorrow. EAAB deputy chairperson Maletsatsi MacebaWotini declined to comment.

Auction Alliance lawyer Alan Smiedt referred Independent Newspapers to the Constitutional Court's pre-hearing summary.

Weekend Argus (Sunday Edition)


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