Auction Alliance wants Concourt to rubber-stamp finding

THE Constitutional Court will hear an application by Auction Alliance on Monday for confirmation of an order relating to sections of the Estate Agency Affairs Act (EAAA) and the Financial Intelligence Centre Act (Fica).

This comes after the Western Cape High Court declared Section 32A of the EAAA and Section 45B of the Fica unconstitutional and invalid.

The sections permitted any inspections without warrants, other than routine or random inspections aimed at ensuring regulatory compliance.

The Estate Agency Board, the primary regulator under the EAAA, suspected Auction Alliance of breaching the acts.

Inspectors from the board and the financial intelligence centre tried to use the search powers contained in the two acts to search Auction Alliance’s business premises.

Auction Alliance refused to let the inspectors enter.

It argued that the provisions were invalid because they authorised “targeted” searches without a warrant.

The high court upheld Auction Alliance’s challenges to both statutory provisions, and declared them unconstitutional and invalid.

The declaration had an immediate effect in relation to Section 32A of the EAAA, but the high court suspended its declaration of invalidity regarding Section 45B of the Fica for 18 months to give the legislature an opportunity to amend it.

In the interim, the high court ordered that words be read into Section 45B to allow a magistrate or judge to grant a warrant upon application.

The high court rejected the board’s counter-application, in which the board had asked it to grant a warrant for the search of Auction Alliance’s premises.

The board conceded that both statutory provisions were unconstitutional, but it took issue with the distinction the high court drew between “targeted” and “non- targeted” searches. – Sapa