Can a missing B-BBEE certificate stop you trading? Court says no
PRETORIA — Property businesses have won relief from a requirement that could prevent them from operating without a BEE certificate. The Pretoria High Court has ruled the provision unconstitutional and barred the regulator from refusing Fidelity Fund Certificates solely on that basis while the Constitutional Court considers confirmation.
The judgment, delivered on 8 September following Sakeliga’s challenge, concerns section 50(a)(x) of the Property Practitioners Act. It required applicants to possess a “valid BEE certificate” to obtain the certification necessary to practise.
The court found that the law failed to make clear which document was required, who needed it or what standard made it valid. That uncertainty affected people’s ability to enter or remain in the occupation.
The dispute followed the Property Practitioners Regulatory Authority’s attempt in 2024 to require at least BEE Level 8 compliance before issuing certificates. The authority subsequently reversed its position after receiving advice that holding a valid certificate did not necessarily mean achieving a particular compliance level.
Sakeliga continued its litigation, challenging the underlying requirement and the breadth of the legislation’s definition of a property practitioner. The organisation welcomed the outcome as a victory against making BEE a condition for permission to trade.
The court also granted limited relief to certain private owners, people merely hosting another person’s property advertisement, and those dealing in specified property interests outside the ordinary course of business.
However, the judgment does not abolish BEE or the Fidelity Fund Certificate system. The court recognised transformation as a legitimate objective; its objection concerned the uncertainty of this particular requirement.
The declarations of constitutional invalidity require Constitutional Court confirmation. In the meantime, the temporary order prevents the authority from using the disputed BEE provision alone to refuse certification. Other applicable licensing requirements remain, making the immediate change specific: the absence of a BEE certificate cannot, by itself, close the door to lawful practice.
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