Bar Machanik as estate agent - board

Johannesburg - Wendy Machanik should not be allowed to operate as an estate agent as she is a member of a close corporation prohibited from doing business, the High Court in Johannesburg heard on Friday.

The Estate Agents Affairs Board (EAAB) argued that Wendy Machanik should not be granted a fidelity fund certificate for 2011 to allow her to operate as an estate agent.

This was because she was the sole member of the close corporation, Wendy Machanik Properties, which was prohibited from operating as it did not have a valid certificate for 2011.

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 R25m.

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.

Wendy Machanik is seeking an urgent order compelling the EAAB to grant her a fidelity fund certificate. The EAAB is seeking an order to prevent her from operating as an estate agent.

Wendy Machanik Properties (WMP) was provisionally ordered to not trade as an estate agent by the 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.

Judge Kollapen would hand down his order on Friday afternoon.