Attorney Richard Spoor at Con Court who is representing Mr Mankayi who was not present due to his illness. The 03 Constitutional Court hears argument in a case in which Mr Mankayi,the applicant wants to claim damages at common law from a mining company . Picture: Antoine de Ras . 17/08/2010

Johannesburg - An order declaring a section of the Estate Agency Affairs Act (EAAA) and the Financial Intelligence Centre Act (FICA) unconstitutional and invalid was upheld on Thursday.

In a unanimous judgment, the Constitutional Court held that Section 32A of the EAAA and Section 45B of the FICA unjustifiably infringed the right to privacy.

It found both provisions lacked meaningful limits, and were suspended for 24 months to allow Parliament to “cure their defects”.

In the interim, the court read a warrant requirement into each provision which allowed magistrates and judges to issue warrants upon an application by an inspector.

The case arose when the Estate Agency Affairs Board, the primary regulator under the EAAA and responsible for enforcing FICA compliance, suspected that Auction Alliance had not complied with both statutes.

Relying on the search powers under the two statutes, inspectors tried to conduct a search of Auction Alliance's business premises without a warrant. Auction Alliance refused them entry and approached the court.

The High Court in Cape Town previously found both sections invalid because it permitted inspections without warrants, other than routine inspections aimed at ensuring regulatory compliance.

The High Court's order gave Parliament 18 months to amend the sections.

The Constitutional Court declined to authorise a warrant in favour of the board, and it would have to apply to the High Court. - Sapa