Property watchdog wars: Suspended boss says minister had no authority to appoint board

Lawyers representing the Property Practitioners Regulatory Authority’s (PPRA) suspended boss Mamodupi Mohlala-Mulaudzi are not only challenging the legality of her suspension, but also that of the entity’s board and their appointments.

Their initial approach was for the court to decide on an urgent basis her quest for the board to be declared unlawfully constituted and therefore its decision to suspend her invalid.

But when the matter was first heard on Tuesday in the Johannesburg High Court, Judge Thina Siwendu found the approach in presenting all the papers, that is urgency, legality of the board, and her suspension, in one part problematic.

The judge said her difficulty was Mohlala-Mulaudzi’s approach was linking the question of urgency and the legality in the constitution of the board.

“This never happens this way. I promise you what I would have preferred is if the applicant was coming in two parts; addressing the issue of suspension and part B with the review of the issues of legality of the board. And I raised this because it just complicates matters,” she said.

Change of plan

Mohlala-Mulaudzi’s advocate Francois Botes agreed, and instead focused on lobbying the court for urgent order for the lifting of her suspension and then returning at a later stage for the review of the legality of the board.

Her argument is that the current board is illegitimate because it was appointed by Human Settlements Minister Mamoloko Kubayi  on 26 November 2021 under the old Estate Agency Affairs Act.

According to Mohlala-Mulaudzi, Kubayi appointed the new board before the new Property Practitioners Act came into effect, pointing out that as such the minister had no power at the time to appoint a new board.

But advocate Sello Langa for the minister said it was not disputed that Kubayi appointed the Board before the Act came into effect, but said this did not mean that the minister had no power to appoint the board.

Opportunistic?

He also argued that Mohlala-Mulaudzi had previously participated in the affairs of the board, had attended meetings, and carried out the board’s decisions which she now claims were invalid.

“Unfortunately, the problem is that all was until the suspension of the applicant. Had it not been for that, there would be no issue. Often when a person raises issues of public interest, usually they will also pin point to certain content of the board that is illustrative of conduct that is unconstitutional or that is not in the public interest,” Langa said.

Mohlala-Mulaudzi’s lawyers have also poked holes in the board’s case that the property practitioners’ watchdog would be left radar-less if her application was successful.

Advocate Botes, for Mohlala-Molaudzi, said that the Public Finance Management Act, in Section 49, provided for a safety net in the eventuality of the absence of the board.

He said as a public entity, PPRA had an accounting authority in the form of the executive and that a snag with the Board did not mean there would be no authority, or that accounting authority would be seized with the running of the entity.

“The chief executive officer or the other person in charge of the public entity is the accounting authority for that public entity unless specific legislation applicable to that public entity designates another person as the accounting officer…if [the court] finds that the suspension of the applicant is illegal and the board unlawful, there cannot be an argument that this ship is bound for failure or headed for the rocks,” Botes argued.

Ruling on the matter is expected to be delivered on Tuesday afternoon.

– siphom@citizen.co.za