The Commissioner for Consumer Affairs v Prettejohn No. Dcaat-97-178 Judgment No. D3755

[1998] SADC 3951

The Commissioner for Consumer Affairs
v
Brenton James PRETTEJOHN

Civil
Judge Russell, Assessors Hutchinson & Healy

On 18 March 1993 the defendant applied to the Commercial Tribunal for a Commercial and Private Agent’s Licence under the provisions of the Commercial and Private Agents Act 1986.

The defendant stated on his application form that he had not been convicted of any offence other than a traffic offence, nor were there any such proceedings pending.

At the time of the application the defendant had been convicted of the offences referred to in subparagraph (c) of paragraph 1 of the Summons.

The defendant was granted a Commercial and Private Agent’s Licence with the endorsements of Commercial Agent, Inquiry Agent, Security Agent, Security Alarm Agent and Process Server by the Commercial Tribunal on 24 April 1993.

Pursuant to the provisions of Schedule 2 of the Security and Investigation Agents Act 1995 the licence granted by the Commercial Tribunal to the defendant continues as a licence pursuant to the provisions of the Security and Investigation Agents Act.

By Section 9 of the Security and Investigation Agents Act a natural person is entitled to be granted a licence if , amongst other things, the person has not been convicted of an offence of a class specified by regulation in relation to the functions to be authorised by the licence and is a fit and proper person to be the holder of the licence.

The prescribed offences are set out in Schedule 1 to the Security and Investigation Agents Regulations 1996. They include an indictable offence, common assault or any offence of violence, other than a first offence of common assault, and an offence against the Controlled Substances Act involving a prohibited substance, other than a simple possession offence within the meaning of that Act.

It will be noted that not only had the defendant been convicted of producing a prohibited substance contrary to the provisions of the Controlled Substances Act, but he had also been convicted of four offences of dishonesty, namely, the offences of receiving, larceny, attempted larceny and making 8 false statements in connection with a claim for a benefit contrary to the provisions of the Social Security Act.

In the light of those circumstances, we are satisfied that by failing to disclose those previous offences when applying for the licence the defendant had obtained that licence improperly.

Moreover, since the defendant committed another four offences after obtaining the licence, namely common assault, failing to secure a firearm on two occasions and carrying an offensive weapon, we are satisfied that the defendant is not a fit and proper person to be the holder of the licence granted to him.

By virtue of the provisions of Section 25 of the Security and Investigation Agents Act there is a proper cause for disciplinary action against an agent, in the case of a person licensed as an agent where the licence of the agent was improperly obtained or events have occurred such that the agent would not be entitled to be granted the licence if he or she were to apply for it.

In the light of the findings that we have made we are satisfied on the balance of probabilities that there is proper cause for taking disciplinary action against the defendant.  In such a case Section 29 enables the Court to order one or more of the following -

1. reprimand the person;

2. impose a fine not exceeding $8,000 on the person;

3. in the case of a person who is licensed as an agent -

   (i)     impose conditions or further conditions on the licence;

   (ii)... suspend the licence for a specified period or until the fulfilment of stipulated conditions or until further order;

   (iii)cancel the licence;

4. disqualify the person from holding a licence or a licence of a specified class under the Act or prohibit the person from carrying on business or as an agent of a specified class;

5. prohibit the person from being employed or otherwise performing functions as an agent or as an agent of a specified class;

6. prohibit a person from being a director of a body corporate that is an agent or an agent of a specified class.

By subsection (2) of Section 29 the Court may stipulate that a disqualification or prohibition is to apply -

(a)(i)     permanently; or

(ii)for a specified period; or

(iii)until the fulfilment of stipulated conditions; or

(iv)until further order;

and

(b)stipulate that an order relating to a person is to have effect at a specified future time.

In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J considered and discussed the standard of fitness required of an applicant for a licence under the Commercial and Private Agents Act 1972. At page 74 His Honour said:-

‘To my mind, it is not inconsistent with the assumed intent and meaning of the statute to say that a person, who holds a licence as a commercial agent, a commercial sub-agent or a process server, is in a minor, though practical, way held out as a person who is authorized to take some part in the administration of justice and who is capable of performing duties not dissimilar from those performed by bailiffs employed in the courts system.  Moreover, persons holding licences under the Act are intended to be persons who, by reason of knowledge, skill, capacity, good fame and character, can safely be accredited to the public as persons who can be entrusted with the responsibilities and duties pertaining to the work comprehended by the particular type of licence held.  Any member of the public engaging the services of, or having business dealing with, a person holding a licence as a commercial agent, a commercial sub-agent or a process server, is entitled to expect that person to be of good standing in the community and to possess sufficient skills, experience and proficiency to enable him to discharge the functions which he is licensed to perform.  Hence, it seems to me that the object of the legislation is twofold:  first, to control, regulate and supervise the conduct of those who engage in the sort of work falling within the ambit of the Act, and, secondly, to ensure that those to whom licences are granted are persons of probity who have the capacity to carry out the duties and responsibilities with which licences invest them.  With this in mind, Parliament has constituted a Board which, in the exercise of its discretion to grant or refuse licences, has a duty to the community to be careful not to accredit any person as a licensee under the Act, unless he is worthy of public confidence and can satisfactorily establish his right to that credential.’

In our view the same may be said in respect of the standard of fitness required of an agent licensed under the provisions of the Security and Investigation Agents Act 1995.

Bearing in mind our findings that the defendant obtained the licence improperly and that he is not a fit and proper person to hold a licence we have reached the view that it is proper to order that the defendant’s licence be cancelled and that we should further order that the defendant be disqualified from holding a licence under the Act and that he be prohibited from being employed or otherwise performing the functions of an agent licensed under the provisions of the Act.

Accordingly, this Court doth order

1. THAT the Commercial and Private Agent’s Licence (No IAL 68538) with endorsements of a Commercial Agent, Inquiry Agent, Security Agent, Security Alarm Agent and Process Server granted to Brenton James Prettejohn by the Commercial Tribunal on 27 April 1998 be and is hereby cancelled.

AND

1. THAT the said Brenton James Prettejohn be disqualified from holding a licence under the Security and Investigation Agents Act 1995 until further order.

AND

1. THAT the said Brenton James Prettejohn be and is hereby prohibited from being employed or otherwise performing functions of an agent as defined by Section 24 of the Security and Investigation Agents Act 1995 until further order.