- The Property Practitioners Act required a valid BEE certificate without defining it.
- Judge E van der Schyff found the uncertainty affected access to the property profession.
- The judgment also narrowed who can legally be treated as a property practitioner
The High Court in Pretoria has exposed a major flaw in the Property Practitioners Act after finding that property practitioners were expected to produce a valid BEE certificate, even though the law never explained what that document was supposed to be.
Judge E van der Schyff said the case was not about whether transformation is constitutional. The real issue was whether Parliament could make entry into a profession depend on a legal requirement that was never clearly defined.
Sakeliga brought the application after arguing that the Act created confusion for people applying for Fidelity Fund certificates, making it hard to know what the law actually required.
The law left everyone guessing
Anyone wanting to work as a property practitioner must have a Fidelity Fund certificate. The dispute centred on the section of the Act that stopped the Property Practitioners Regulatory Authority from issuing that certificate unless an applicant had a valid BEE certificate.
The court found that the Act never defines what a valid BEE certificate is. Different businesses might use verification certificates, affidavits or CIPC certificates under the broader BEE system, but the Property Practitioners Act does not say which document meets its own requirement.
Judge E van der Schyff said, “Those affected by the provision and the Authority charged with administering it cannot determine those matters from the legislation with reasonable certainty.”
The judgment also noted that the Authority itself applied different interpretations of the rule over time, which added to the uncertainty applicants faced.
More than a paperwork problem
The court said this was not simply an administrative issue. A Fidelity Fund certificate is the legal licence to practise as a property practitioner. Without it, people cannot lawfully work in the industry.
Judge Van der Schyff found that an unclear licensing requirement affects a person’s ability to enter the profession, not just how the profession is regulated.
Who is really a property practitioner?
Sakeliga also challenged the Act’s expanded definition of property practitioner. The court accepted that Parliament may regulate a wider property sector, including bond brokers, property managers and other intermediaries, because they play a direct role in property transactions and consumer protection.
However, Judge Van der Schyff found that the Act went too far by potentially treating private owners, occasional sellers and even advertising platforms as property practitioners.
Judge Van der Schyff said, “The difficulty lies in attaching the status and regulatory consequences of a property practitioner to a private owner solely because of the form of the proprietary interest disposed of.”
A call for clearer laws
The judgment makes one point clear. Transformation remains a legitimate constitutional goal, but the laws used to achieve it must be clear and easy to apply.
Judge Van der Schyff said Parliament is free to pursue transformation measures, but it must clearly identify the document required, who must provide it and the standard that must be met.
The outcome
Judge Van der Schyff declared the BEE certificate requirement in the Property Practitioners Act unconstitutional because the law fails to define what a valid BEE certificate is. The court found that the provision creates legal uncertainty and cannot lawfully be used as a barrier to obtaining a Fidelity Fund certificate.
The judge also ruled that parts of the Act’s definition of property practitioner are irrationally overbroad, particularly where they could classify private owners, occasional sellers and advertising platforms as property practitioners despite having no meaningful connection to the purpose of the legislation.
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