THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case No: 415/2019
In the matter between:
SIGNATURE REAL ESTATE (PTY) LTD                                              APPELLANT

and

CHARLES EDWARDS PROPERTIES                                           FIRST RESPONDENT
CHARLES EDWARDS PROPERTIES CC                          SECOND RESPONDENT
ATLANTIC SEABOARD REALTY (PTY) LTD                        THIRD RESPONDENT
THE ESTATE AGENCY AFFAIRS BOARD                        FOURTH RESPONDENT

Neutral citation: Signature Real Estate (Pty) Ltd v Charles Edwards Properties and
Others (415/2019) [2020] ZASCA 63 (10 June 2020)
Coram:
NAVSA, CACHALIA, DAMBUZA, MAKGOKA AND SCHIPPERS JJA
Heard:
The matter was disposed of without an oral hearing in terms of s 19(a)
of the Superior Courts Act 10 of 2013.
Delivered:
This judgment was handed down electronically by circulation to the
parties’ representatives by email, and by publication on the Supreme Court of Appeal
website and release to SAFLII. The time and date for hand down is deemed to be
10h00 on the 10th day of June 2020.
Summary: Estate Agent – entitlement to claim commission – application of ss 34A
and 26 of the Estate Agency Affairs Act 112 of 1976 – whether estate agent in
possession of a fidelity fund certificate which erroneously described the estate agent
was precluded by s 34A from claiming commission.

___________________________________________________________________
ORDER
___________________________________________________________________

On appeal from: Western Cape Division of the High Court, Cape Town (D M Davis
AJ sitting as court of first instance):
The appeal is upheld. The order of the court a quo is set aside and replaced with the
following:
‘1. The third respondent (Atlantic Seaboard Realty (Pty) Ltd) is ordered to pay the
applicant:
1.1
the amount of R13 440;
1.2
interest on the above amount at the prescribed rate from 13 June 2018 to date
of payment; and
1.3
the applicant’s costs, including the costs reserved on 17 July 2018.’
___________________________________________________________________
JUDGMENT
___________________________________________________________________

Makgoka JA (Navsa, Cachalia, Dambuza and Schippers JJA concurring)
[1] Section 34A of the Estate Agency Affairs Act 112 of 1976 (the Act) precludes
an estate agent from claiming commission when, at the time the commission was
earned, the estate agent had not been issued with a valid fidelity fund certificate by
the regulatory statutory body, the Estate Agency Affairs Board (the Board), the fourth
respondent.
[2] In this case, the appellant, Signature Real Estate (Pty) Ltd (Signature) was not
in possession of a fidelity fund certificate in its name at the time the disputed
commission between it and the third respondent, Atlantic Seaboard Realty (Pty) Ltd
(Atlantic), was earned. Signature claimed, however, that it was entitled to be issued
with the certificate, as it had complied with the requirements of the Act, and that the
reason the certificate in its possession contained a misdescription was due to an error
on the part of the Board. The Board concedes this.

[3] The court a quo, the Western Cape Division of the High Court, Cape Town, held
that Signature was not entitled to claim commission in the circumstances.
It accordingly dismissed Signature’s application against Atlantic for payment of
commission, but subsequently granted leave to Signature to appeal to this court.
Atlantic and the rest of the respondents do not take part in the appeal. The court
a quo’s decision is in conflict with that of the Gauteng Division of the High Court,
Johannesburg, in Crous International (Pty) Ltd v Printing Industries Federation of
South Africa [2016] ZAGPJHC 391; [2017] 1 All SA 146 (GJ), where Coppin J held
a contrary view. Crous was only brought to the attention of the court a quo during the
application for leave to appeal. Given the conflict between the two decisions, and the
importance of the issue for estate agents’ profession, Signature was granted leave to
appeal to this Court, pursuant to s 17(1)(a)(ii) of the Superior Courts Act 10 of 2013.1
[4] The facts are briefly these. During April 2018, Signature and Atlantic jointly
brokered a lease agreement in terms of which they were each to receive 50 per cent
of the commission due in terms of that agreement. After the full amount of the
commission was paid to Atlantic, it refused to pay Signature the latter’s share of the
commission. Signature launched an application in the court a quo seeking, among
others, payment of the commission.
[5] Atlantic opposed the application, and also launched a counter-application
seeking certain relief against Signature, which is not germane to this appeal. In its
answering
affidavit,
which
also
served
as
its
founding
affidavit
in
its
counter-application, Atlantic challenged Signature’s locus standi, alleging that at the
time the lease agreement was brokered, Signature was not in possession of a fidelity
fund certificate.
[6] In its replying affidavit, which also served as its answering affidavit in Atlantic’s
counter-application, Signature denied Atlantic’s allegations and explained that on

1 Section 17(1)(a)(ii) provides:
‘Leave to appeal may only be given where the judge or judges concerned are of the opinion that –
(a) (i)   . . .
(ii)  there is some other compelling reason why the appeal should be heard, including conflicting
judgments on the matter under consideration’.

9 January 2017 Hidicol CC, which had traded as Signature Real Estate CC, had been
converted into a company (the appellant). On 10 May 2017 the Board was informed
of the conversion, which was duly recorded in its records and Signature complied with
all the Board’s requirements in relation to changes in entities that hold fidelity fund
certificates. An application was made to the Board in the name of Signature for fidelity
fund certificates to be issued to it, its directors and its agents. On 1 January 2018 the
Board erroneously issued certificates in the name of Hidicol CC instead of Signature,
and similarly, to its directors and agents, but in their former capacities as members
and agents of Hidicol CC.
[7] Signature further explained that, after being made aware of these errors,
on 8 May 2018, the Board issued new certificates to Signature, its directors and
agents. The certificates were later withdrawn, and replaced with ones backdated
to 1 January 2018. In support of the above, Signature attached an affidavit deposed
to by the Registration Manager of the Board, in which the above was confirmed.
Importantly, the manager confirmed that Signature, its directors and agents were
entitled to be issued with fidelity fund certificates on 1 January 2018, but due to the
Board’s oversight, the certificates were issued in the name of Hidicol CC, which error
was rectified in May 2018. The certificates issued in May 2018 were later withdrawn
and replaced with ones backdated to 1 January 2018.
[8] In its replying affidavit in its counter-application, Atlantic averred that given how
the online applications for renewal of fidelity fund certificates worked, and the fact that
the certificates were issued in the names of Hidicol CC and its former directors and
agents, the 2018 applications were probably erroneously submitted in the name of
Hidicol CC instead of Signature. Thus, said Atlantic, the certificates were invalid,
having been issued to a non-existent company, its directors and agents. Atlantic
accordingly contended that Signature was precluded by s 34A of the Act from payment
of commission.
[9] The matter came before D M Davis AJ, who delivered judgment on
12 December 2018. She dismissed Signature’s application. First, she accepted
Atlantic’s argument that because the fidelity fund certificates were issued in the name

of Hidicol CC, the application for their issue must have been erroneously made in that
name, and that the certificates were, to that extent, invalid. For this conclusion, the
learned judge sought reliance on the decision of this Court in Brodsky Trading 224 CC
v Cronimet Chrome Mining SA (Pty) Ltd and Others [2016] ZASCA 175; 2017 (4) SA
610 (SCA). Consequently, she held, absent a valid certificate, an estate agent was
precluded, in terms of s 34A, from claiming commission.
[10] Section 34A reads as follows:
‘(1) No estate agent shall be entitled to any remuneration or other payment in respect of or
arising from the performance of any act referred to in subparagraph (i), (ii), (iii) or (iv) of
paragraph (a) of the definition of “estate agent”, unless at the time of the performance of
the act a valid fidelity fund certificate has been issued –
(a)  to such estate agent; and
(b)  if such estate agent is a company, to every director of such company or, if such estate
agent is a close corporation, to every member referred to in paragraph (b) of the definition
of “estate agent” of such corporation.
(2) No person referred to in paragraph (c)(ii) of the definition of “estate agent”, and no estate
agent who employs such person, shall be entitled to any remuneration or other payment in
respect of or arising from the performance by such person of any act referred to in that
paragraph, unless at the time of the performance of the act a valid fidelity fund certificate
has been issued to such person.’
Section 34A, must be read with s 26 of the Act, which prohibits the rendering of
services as estate agent by any person, company or close corporation, unless they
have been issued with a valid fidelity fund certificate at the relevant time.2

[11] Atlantic’s version that the application for the 2018 fidelity fund certificates had
probably been made in the name of Hidicol CC and not of Signature, was considered
by the court a quo to constitute a genuine dispute of fact. According to the learned
judge, it had to be resolved in favour of Atlantic, purportedly on the application of the

2 Section 34A was introduced in response to Noragent (Edms) Bpk v De Wet [1985] 3 All SA 153 (T);
1985 (1) SA 267 (T), where the Transvaal full court held, with reference to Swart v Smuts [1971] 2 All
SA 153 (A); 1971 (1) SA 819 (A), that an agreement between an estate agent and an owner of land
was not invalid merely by reason of the fact that the estate agent had failed to comply with the provisions
of s 26 of the Act and that the estate agent was entitled to enforce a contractual claim for commission.
Thus, viewed in this context, s 34A simply made explicit, what is implicit in s 26.

Plascon-Evans3 principle. She therefore concluded that the certificates were invalid,
and within the scope of Brodsky. With respect, that principle was misapplied. There
was no dispute of fact. Atlantic’s version as to how the certificate was issued was not
based on any facts or first-hand knowledge, but was purely speculative.
[12] Signature, on the other hand, stated that it had complied with all the formalities
and was entitled in terms of the provisions of the Act to be issued with the proper
certificate in its own name and that the misdescription was due to an error on the part
of the Board. And once this was acknowledged by the Board, Atlantic’s averment lost
impetus. The court a quo failed to consider all these. On the evidential material before
it the court below came to the wrong conclusion on the facts.
[13] In the light of the above, the court a quo’s reliance on Brodsky must be
examined. There, a company which operated as an estate agent had been converted
into a close corporation. There was no notification to the Board of the conversion, and
consequently no request for new certificates to be issued in the name of the new entity.
As a result, the Board continued to issue fidelity fund certificates in the name of the
(non-existent) company and to the former director of the converted company in his
capacity as such. No certificates were issued to the close corporation and its member.
It was held that the close corporation was precluded by s 34A of the Act from claiming
commission. It was explained (at para 22):
‘This is not simply an issue of nomenclature, or a misdescription in the name of the certificate
holder, but one of substance. The objectives of the Act are not fulfilled by the issue of invalid
certificates by the Board as they play a central role in ensuring that estate agents comply with
its provisions. There was accordingly no basis for the court a quo to conclude that the appellant
had substantially complied with its requirements’.

3 In accordance with the well-known principle enunciated in Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd [1984] 2 All SA 366 (A); 1984 (3) SA 623 (A) at 634E-635C, which is this: in motion
proceedings where disputes of fact arise on the affidavits, a final order can be granted only if the facts
averred in the applicant's affidavit, which have been admitted by the respondent together with the facts
alleged by the respondent, justify such an order. This is so, unless the respondent’s version consists of
bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or
so clearly untenable that the court is justified in rejecting them merely on the papers.

[14] The court a quo seemingly considered the facts of the present case analogous
to those in Brodsky. They are not. The two cases are clearly distinguishable in the
following respects. First, in Brodsky, the Board was not informed of the conversion,
whereas in this case, the Board was timeously informed. Second, in Brodsky, the
converted close corporation never applied to the Board for fidelity fund certificates to
be issued for it and its member. In this case, the converted company did make such
application timeously, and complied with all the requirements for such certificates to
be issued. Third, in Brodsky it was the fault of the converted close corporation that the
certificates were issued in the name of a non-existent company, whereas in this case,
the fault lies squarely and solely with the Board. So viewed, the issue in this case,
unlike in Brodsky, was simply one of nomenclature, or a misdescription in the name of
the certificate holder, rather than of substance. Brodsky is therefore of no assistance
to Atlantic. It follows that the court a quo’s reliance on Brodsky was misconceived.
[15] I referred earlier to Crous, where an estate agent company had not been issued
with fidelity fund certificates for 2008 and 2009. However, its directors had been issued
with certificates for those years. The company had complied with the legal
requirements and the failure to issue the certificate was due to a technical glitch at the
Board, resulting in the certificate of the company not being printed, a fact confirmed
by a representative of the Board. At para 98, Coppin J concluded that the purpose of
ss 26 and 34A had been achieved, holding that ‘in substance (though not form) the
plaintiff was authorised by the Board to perform acts as estate agent for payment’ and
that the company was entitled to payment of commission.
[16] In the present case, the court a quo deemed it irrelevant that Signature and its
estate agents might well have been entitled to be issued with fidelity fund certificates
as at 1 January 2018. The court a quo said:
‘The wording of s 34A is clear. The section does not require mere entitlement to be issued
with a valid [fidelity fund certificate] in order to be able to claim commission; it requires a valid
[fidelity fund certificate] actually issued at the time when the commission is earned. To adopt
the interpretation of s 34A contended for by Mr Kantor would do violence to the clear wording
of the section: it would cross the divide from statutory interpretation to impermissible judicial
legislation (see Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593
(SCA) para 18).’

And in the judgment granting leave to appeal:
‘I am of the respectful opinion that the court’s reasoning in Crous fails to take into account that
the purpose of ss 26 and 34A is not only to ensure that estate agents have met the
requirements of the Act to practise as such, but also that estate agents can demonstrate proof
to any interested party of compliance with the requirements of the Act. In other words, part of
the function of a [fidelity fund certificate] is to serve as public proof of an estate agent’s status.
This element of publication was ignored in Crous’.
[17] The provisions of 34A are clearly peremptory. But even peremptory provisions
must yield to two interpretive imperatives. First, the injunction of s 39(2) of the
Constitution, which enjoins courts, when interpreting any legislation, to promote the
spirit, purport and objects of the Bill of Rights. In this instance, the right implicated is
one enshrined in s 22 of the Constitution, namely the right to freely engage in a trade,
occupation or profession. Therefore, an application of the section that promotes, rather
than impedes, the exercise of that right, is to be preferred Second, due regard must
be had to the purpose of the statute, more specifically, whether adopting a strict or
literal interpretation of its provisions is consistent with what the Act seeks to achieve.
[18] In the present case one must bear in mind the general object of the Act, as set
out in its long title, which is to control certain activities of estate agents in the public
interest through the establishment of the Board and the Estate Agents Fidelity Fund
(the fidelity fund). The fidelity fund is established in terms of s 12(1) of the Act. Its
purpose is to reimburse persons who, in certain circumstances, have suffered financial
loss due to missappropriation  of trust monies by estate agents. The monies in this
fund are, in the main, contributed by all registered estate agents who, in return, are
issued with valid fund certificates. In other words, a fidelity fund certificate is issued in
exchange for compliance by an estate agent with the relevant requirements set out in
the Act, which include payment of a stipulated amount into the fund. In this way,
members of the public are assured of reimbursement in the event of misappropriation
of their monies by an estate agent.
[19] The Act provides a regulatory framework for estate agents. One of the key
components of that framework is an estate agent’s trust account. In terms of s 32 of
the Act, every estate agent is required to open and keep one or more separate trust

accounts with a bank into which money held or received by or on behalf of such estate
agent shall be deposited. The estate agent is required to notify the board of the details
of such a bank account or accounts.
[20] In Rogut v Rogut 1982 (3) SA 928 (A) at 939C the object of the Act was summed
up as follows:
‘The general object of the Act was to protect the public against some persons by requiring all
estate agents, as defined, to take out a fidelity fund guarantee (which is not granted
automatically); and to pay the levies and contributions; and by requiring all estate agents to
keep necessary accounting records and to cause them to be audited by an auditor, and by
obliging every estate agent to open and keep a separate trust account with a bank and
forthwith to deposit therein the moneys held or received by him on account of any person’.
[21] In terms of the Board’s rules, an application for a fidelity fund certificate for the
following year must be made not later than 31 October of each year. Signature had
complied with this and all other requirements of the Act. But for the error on the part
of the Board, Signature was entitled to, and would have been issued with, a valid
fidelity fund certificate for the period 1 January-31 December 2018.
[22] The court a quo suggested that where the Board delays in issuing a fidelity fund
certificate to a compliant estate agent, such an estate agent should apply to court in
terms of s 6(3) of the Promotion of Administrative Justice Act 3 of 2000 for a
mandamus compelling the Board to issue the certificate. That attitude was clearly
incorrect. On the other hand, estate agents should not adopt a supine attitude in the
face of the Board’s errors. They should do what is reasonably within their power to
have the situation rectified. In the meantime their compliance with the requirements
should be a primary factor in the determination of disputes that arise before the error
is rectified.
[23] In the present case the purpose of the Act was served. The public would have
been protected. If, for example, a member of the public had suffered loss due to
misappropriation by an estate agent involved in the agreement in question, the Board,
in my view, would have been hard-pressed to argue that a claim against the fidelity

fund should not succeed because a certificate had not physically been issued to the
wrongdoer at the time of the conclusion of the agreement. Such an outcome would be
contrary to the purpose of the legislation.
[24] I agree that care should be taken to observe the peremptory provisions of s 34A
of the Act. The facts in the present case and in Crous are within a narrow compass. In
both instances, very specific to their facts, the provisions of the Act in relation to a
fidelity fund certificate being issued were met and in both the estate agents were rightly
considered to have been in possession of a certificate, thus meeting the requirements
of the section. The findings in both cases should not be construed as an invitation to
laxity or to a liberal approach to the application of s 34A.
[25] It follows that the court a quo should have found in Signature’s favour. The
appeal must thus succeed. Atlantic is liable for the costs in the court a quo. There is
no costs order in this court as none of the respondents participated in the appeal.
[26] The following order is made:
The appeal is upheld. The order of the court a quo is set aside and replaced with the
following:
‘1. The third respondent (Atlantic Seaboard Realty (Pty) Ltd) is ordered to pay the
applicant:
1.1
the amount of R13 440;
1.2
interest on the above amount at the prescribed rate from 13 June 2018 to date
of payment; and
1.3
the applicant’s costs, including the costs reserved on 17 July 2018.’

_______________________
T M Makgoka
Judge of Appeal

APPEARANCES:
For appellant:
A Kantor SC
Instructed by:

Frank Biccari, Cape Town

Van der Merwe & Sorour, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY
JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM
The Registrar, Supreme Court of Appeal

DATE
10 June 2020
STATUS
Immediate
Please note that the media summary is for the benefit of the media and does not form part of
the judgment of the Supreme Court of Appeal.

Signature Real Estate (Pty) Ltd v Charles Edwards Properties and Others (415/2019) [2020]
ZASCA 63 (10 June 2020).
Today, the Supreme Court of Appeal (the SCA) upheld an appeal brought by the appellant,
Signature Real Estate (Pty) Ltd against a judgment of the Western Cape Division of the High
Court, Cape Town.
The appeal concerned the application of s 34A of the Estate Agency Affairs Act 112 of 1976,
which precludes an estate agent from claiming commission when, at the time the commission
was earned, the estate agent had not been issued with a valid fidelity fund certificate by the
regulatory statutory body, the Estate Agency Affairs Board (the Board). In the present case,
Signature Real Estate (Pty) Ltd (Signature), an estate agency, was not in possession of a fidelity
fund certificate in its name at the time the disputed commission between it and the third
respondent, Atlantic Seaboard Realty (Pty) Ltd (Atlantic), was earned. Signature was in
possession of a fidelity fund certificate which erroneously described it. However, Signature
was entitled to be issued with the certificate, as it had complied with the requirements of the
Act, and that the reason the certificate in its possession contained a misdescription was due to
an error on the part of the Board. The Board conceded this.
The facts which gave rise to the litigation are the following. During April 2018, Signature and
Atlantic jointly brokered a lease agreement in terms of which they were each to receive 50 per
cent of the commission due in terms of that agreement. After the full amount of the commission
was paid to Atlantic, it refused to pay Signature the latter’s share of the commission, on the
basis that Signature was not in possession of a valid fidelity fund certificate when the
commission was earned. Signature launched an application in the Western Cape Division of
the High Court, seeking, among others, payment of the commission. That court dismissed
Signature’s application and concluded that the peremptory nature of s 34A rendered it
irrelevant that Signature and its estate agents might well have been entitled to be issued with
fidelity fund certificates as at 1 January 2018, as that would be contrary to the clear wording
of s 34A. Consequently, the court a quo held that Signature was precluded by the provisions of
s 34A from claiming commission.The high court’s decision was in conflict with that of the

Gauteng Division of the High Court, Johannesburg, in Crous International (Pty) Ltd v Printing
Industries Federation of South Africa [2016] ZAGPJHC 391; [2017] 1 All SA 146 (GJ), in
which a contrary view was held.
The question on appeal was whether under the high court’s application of s 34A to the facts of
the case was correct. The SCA pointed out that the general object of the Act to control certain
activities of estate agents in the public interest, must be borne in mind. The court cautioned
against a too strict or literal application of the provisions of s 34A, so as not to be inconsistent
with what the Act seeks to achieve. The court took into account that in this case, Signature had
complied with all requirements of the Act for it to be issued with a fidelity fund certificate.
But for the error on the part of the Board, Signature would have been issued with such a
certificate for the period 1 January - 31 December 2018. So viewed, the purpose of the Act was
served. The court also distinguished this case on the facts from the decision in Brodsky Trading
224 CC v Cronimet Chrome Mining SA (Pty) Ltd and Others [2016] ZASCA 175; 2017 (4) SA
610 (SCA). Accordingly, the Supreme Court of Appeal overturned the decision of the high
court. However, the court cautioned against construing the findings in this case and in Crous
as an invitation to laxity or to a liberal approach to the application of s 34A. The court further
encouraged estate agents not adopt a supine attitude in the face of the Board’s errors in issuing
fidelity fund certificates, but do what is reasonably within their power to have the situation
rectified.
In the circumstances, the Court (per Makgoka JA) with Navsa, Cachalia, Dambuza and
Schippers JJA concurring, upheld the appeal and made no order of costs in respect of the appeal
as the respondents did not oppose the appeal.

* END*