24 May 2011 The Court rules in favour of the EAAB with full costs - Constantia Sectional Title Management (PTY) Limited interdicted from trading
24 MAY 2011
On 19 April 2011, the Estate Agency Affairs Board (“the Board”), represented by A.B. Scarrott Attorneys, brought an application as a matter of urgency before the South Gauteng High Court asking for certain interim relief against Constantia Sectional Title Management (Pty) Limited and its then sole director, Quintin Brown. The nature of that relief asked for as a matter of urgency was that Constantia Sectional Title Management (Pty) Limited (“Constantia”) be interdicted and prohibited from performing any activities as an estate agent for so long as Quintin Brown as the director was not a registered estate agent with the Board. In addition, because of suspected irregularities as to the manner in which Quintin Brown and/or Constantia had dealt with trust funds, the Board sought relief in the form of placing a curator bonis in control of all trust monies placed by clients of Constantia with Constantia in order to ensure that these trust monies were intact and not misused in any way.
Quintin Brown filed an answering affidavit which caused the EAAB to be uncertain whether its suspicions with regard to the misuse of trust monies were well placed, or not. An interim arrangement was put in place in terms of which a curator bonis monitored the activities on the trust account and in respect of which it was undertaken that the inspectors (from Pasco Risk Management) appointed by the Board would be given untrammelled access to all the records of Constantia in order to continue with an inspection then underway at the instance of the EAAB.
The continued inspection at the instance of the EAAB by the Board’s inspectors revealed, however, serious irregularities in the affairs of Constantia management relating to the manner in which trust monies were dealt with and accounted for by Constantia. This led to the Board, as a matter of urgency, once again approaching the High Court for urgent interim relief. An order giving the Board this relief has been taken without opposition from Constantia or from Quintin Brown.
The relief now taken goes further than the relief initially sought and essentially comprises the following:
1 the Fidelity Fund certificate which would have allowed the Fist Respondent to operate as an estate agent and carry on its business has been withdrawn pending Constantia and/or Quintin Brown showing cause by 2 August 2011 why that Fidelity Fund certificate should not be reinstated; and
2 Constantia is interdicted from operating insofar as Quintin Brown or any other person does not hold a valid Fidelity Fund certificate.
3 that a rule nisi has been issued, once again returnable on 2 August 2011, in terms of which Constantia and Brown are to show cause why they should not be interdicted and prevented from operating various trust accounts of Constantia containing client money;
4 further, Mr Lawrence Moepi, has been appointed as a curator bonis to take control of all trust monies and not merely to monitor transactions but to preserve and look after the trust funds of Constantia.
There is an interim interdict in place interdicting Constantia from operating its trust accounts and putting the said curator in place.
Quintin Brown and Constantia were ordered to pay the Boards costs on a punitive scale.
The EAAB was compelled to lay a criminal complaint by virtue of the irregularities found with regard to the trust funds of Constantia which irregularities arose by virtue of the doings of Quintin Brown. The Commercial Branch of the South African Police are investigating this criminal complaint. That investigation apparently included a search warrant being executed at the premises of Constantia on 20 May 2011 where a number of documents and other information were apparently seized.
The investigation by the EAAB is continuing and it appears also that the South African Police Services, in the form of their Commercial Branch, are also undertaking a criminal investigation.
The first task of the curator bonis will be to undertake an assessment of the state of the trust account of Constantia in order definitively to establish the extent of any shortfall that appears to the Board to exist and to take firm control of the funds so that no one is advantaged.
The EAAB will issue a further press release once clarity has been obtained through the curator bonis.
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