Johannesburg – The Estate Agency Affairs Board and its CEO Mamodupi Mohlala were lambasted by the Joburg High court for their failure to issue Fidelity Funds Certificates to more than 800 estate agents leaving them stranded without work.
The agency, whose task is to look after the affairs of estate agents and Estate agencies was taken to court by the Real Estate Business Owners of South Africa (REBOSA), an organization representing the interests of estate agents and agencies after it had claimed in one of the Professional Property Magazines that the entity had issued Fidelity Fund Certificates to all Estate agents by end of December 2020.
In its urgent application Rebosa dismissed the claim as a lie arguing that EAAB, had year in and year out failed to process renewal applications of more than 600 estate agents, some of whom are their members due to the agency’s problematic IT system.
The organisations said it was shocked to learn of EAAB’s bold claim that all estate agents FFC’s were processed, while most of their members were still awaiting their Certificates despite qualifying for them.
In the papers, the organisation said atleast 624 of their members and 210 independent Estate agents were still awaiting their certificates.
The Independent agents, the court papers shows have also joined in on the application to compel the EAAb to issue them with Fidelity Fund Certificate.
The papers shows that Rebosa had argued that EAAB had acknowledged on numerous occasions that they were struggling with processing renewal applications, and it said their organization had to appoint a full time employee to assist EAAB with processing and cross checking payments of their members to ensure a seamless process because the IT system problem had become a yearly issue.
The organisation also states that the problem with EAAB appeared to be influenced by unskilled and I enthusiastic employees.
In a scathing judgement, Judge F Kathree- Setiloane called out EAAB CEO Mamodupi Mohlala for claiming that the agency had not issued certificates to the estate agents because some were about to be deregistered and that others had submitted incomplete information, stating that she and EAAB failed to provide any shred of evidence to substantiate their claims.
The Judge ordered EAAB to issue certificates to all estate agents listed in the application within 8 days of the judgement, and that the entity was also ordered to pay for the costs of urgent application, including the costs occasioned by the employment of two counsel, on the scale as between attorney and client.
Worse, the Judge also said he was impressed with EAAB’s conduct indicating that some of the estate agents were issued with certificates immediately after the urgent application was launched showing that none of the reasons provided by EAAB for its failure to give out certificates were genuine.
“…there is no dispute of fact with regard to whether the 39 individual applicants are entitled to an FFC, and in respect to whom the EAAB simply failed to provide an answer. As indicated, all 47 of these individual applicants have alleged under oath that they are entitled to FFCs as their applications are fully compliant with the provisions of the Act. As already demonstrated, a conclusory assertion to the contrary without admissible evidence of the relevant facts does not give rise to a dispute of fact, particularly where it has been demonstrated that the EAAB’s assertions cannot be relied upon,” reads the judgement.
The judge said EAAB would need to produce evidence of the deregistration of estate agents and the breach they committed instead of using a blanket assertion which can not be used as evidence.
The judgement shows that, Judhe Kathree Setiloane urged that EAAB must indicate which documents were outstanding in the case of estate agents whose certificate could not be issued because of incomplete information.
However, Judge said in all these two cases, EAAB and its CEO Mohlala failed to produce any evidence to support their claims .
The Judgement further shows that punitive costs were also issued against EAAB and in justifying the decision, the judge said EAAB had sustained its breach of statutory duties and had failed to to acknowledge its wrong let alone providing an explanation to the court in why it issued certificates to some of the agents after the urgent application was launched.
“It (EAAB) has in addition taken unmeritorious technical and dilatory defences and failed to engage fully with the merits of the case,” said the Judge.
The judge also cautioned the conduct of EAAB stating that it had the audacity to ask the court to award punitive costs against the applicants, knowing well that it was its conduct and failure to process and issue certificates to agents that caused for the urgent application to be launched against it.
She said though she did not believe that there was enough grounds to issue punitive costs personally against EAAB CEO Mamodupi Mohlala, her conduct was not beyond reproach, and she has not acted with recklessly or with mala fides.
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