Estate Agency Affairs Board v Auction Alliance (Pty) Ltd and Others

The Estate Agency Affairs Board, a statutory regulator and supervisory body under the Estate Agency Affairs Act 112 of 1976 and the Financial Intelligence Centre Act 38 of 2001 (FICA), attempted to conduct warrantless searches of the business premises of Auction Alliance (Pty) Ltd, an estate agent and accountable institution under both statutes. The searches followed allegations, arising from a television exposé, that Auction Alliance and its former CEO had committed serious and widespread breaches of both Acts, including possible money laundering. Inspectors relied on section 32A of the Estate Agency Affairs Act and section 45B of FICA, both of which authorised warrantless inspections. Auction Alliance resisted the searches and launched a constitutional challenge. The Western Cape High Court declared both provisions unconstitutional and invalid. The Board sought confirmation of these declarations in the Constitutional Court, while also arguing about the scope, retrospectivity, suspension of invalidity, and whether courts could issue warrants under their inherent jurisdiction.

The declarations of constitutional invalidity made by the Western Cape High Court were confirmed. Section 32A of the Estate Agency Affairs Act was declared unconstitutional and invalid to the extent that it permits non-routine, targeted warrantless inspections. Section 45B of FICA was declared unconstitutional, but the declaration was suspended for 18 months to allow Parliament to amend the provision. The High Court’s order was varied, including limitations on retrospectivity. The Board’s request for the Court to issue a warrant under its inherent jurisdiction was refused.

This case is a leading Constitutional Court authority on warrantless searches in regulatory contexts. It clarifies that even in closely regulated industries with a reduced expectation of privacy, targeted enforcement searches generally require prior judicial authorisation. The judgment draws a principled distinction between routine compliance inspections and non-routine enforcement searches, strengthening privacy protections under section 14 of the Constitution. It also limits the inherent jurisdiction of courts to issue warrants, emphasising the need for clear statutory authority, and provides guidance on remedial powers under section 172 of the Constitution.