Wendy Machanik is not allowed to operate as an estate agent as she is a member of a close corporation prohibited from doing business, the South Gauteng High Court ruled on Friday.
Judge Jody Kollapen found in favour of the Estate Agency Affairs Board (EAAB), which was seeking to stop Wendy Machanik and Wendy Machanik properties (WMP) from trading.
“Estate agents should enjoy a higher level of trust as they play a pivotal role … for citizens and the economy,” said Kollapen.
In terms of the Estate Agent Act, a fidelity fund certificate cannot be granted to an entity if it is prohibited from operating its trust account. This likewise applies to members of a close corporation.
In December, the EAAB successfully applied to place the agency’s trust accounts under curatorship following alleged financial irregularities in the management of the accounts, involving around R25-million.
However, Wendy Machanik’s advocate Terence Ossin argued she should be granted a certificate in her personal capacity, as it was an infringement of her constitutional rights not to be allowed to carry on her chosen profession.
He said these rights were embodied in Section 22 of the Bill of Rights, although Judge Jody Kollapen interjected to say these rights were subject to reasonable limitations.
Ossin argued it was unfair to prevent Machanik from selling the business, or allowing it to operate at all.
“There is no justification for this at all,” he said.
WMP was provisionally ordered to not trade as an estate agent by the South Gauteng High Court in Johannesburg, sitting in Pretoria, last Thursday.
“The effect of the interim order [which relates only to WMP] is that WMP will not, in any way, operate as an estate agent until the final determination of the matter,” Gavin Schär, a director at legal firm Knowles Husain Lindsay, acting for the EAAB, said last week.
“Ms Machanik’s attorneys, on her behalf, also gave an undertaking that she will not operate as an estate agent on the same terms [i.e. until the final determination of the matter],” he said. — Sapa