BEE Certificate No Longer Required for Property Practitioners’ FFCs, For Now
The Property Practitioners Regulatory Authority (PPRA) has officially confirmed that it will no longer require a BEE certificate to issue Fidelity Fund Certificates (FFCs) to property practitioners. The decision follows a High Court ruling in early September that declared provisions of the Property Practitioners Act (PPA) unconstitutional and set them aside.
In the PPRA’s words, for the duration of the suspension period under the Court’s interim order, it will no longer require a BEE certificate in order to issue an FFC.
How we got here
The BEE certificate requirement has been part of the PPA since it was enacted in 2022, under section 50(a)(x). For the first couple of years, FFCs were issued to practitioners who held a valid BEE certificate.
That changed in April 2024. The PPRA introduced a policy requiring practitioners to reach an “accepted level of compliance” of 40 points or more (BEE Level 8), and it said this was non-negotiable. A practitioner who didn’t meet it would not get an FFC, and operating without an FFC is a criminal offence.
The stakes were high, and the question of who counts as a property practitioner made things worse. The definitions in the Act were so broad that they captured small businesses, individuals, advertisers and others under the same scheme.
The legal challenge
Business and property groups challenged the policy, and Sakeliga took the matter to court. Its central argument was that the Act requires only a BEE certificate, not any particular level of BEE compliance, and doesn’t empower the PPRA to set one.
The High Court agreed, but went further. It found that section 50(a)(x) as a whole created too much uncertainty and had to be struck down.
That section says the Authority may not issue an FFC to “any person” who is not “in possession of a valid BEE certificate.” The Act doesn’t define that expression. The court said that neither the Act nor the wider statutory framework identifies with reasonable certainty what document is required, from whom, or what standard makes it “valid.” Those affected, and the Authority administering the provision, can’t work this out from the legislation. The section therefore fails the requirement of legal certainty inherent in the rule of law.
The definition of “property practitioner” has changed too
The court also declared paragraph (b) of the definitions invalid. That declaration is suspended for 24 months from the date the Constitutional Court confirms it. During the suspension, the court order reads in a replacement that narrows who qualifies as a property practitioner. It now explicitly excludes:
- A natural person marketing or promoting a property they own in their personal capacity
- Cases where that activity is undertaken in the course of property development, or in a business involving the sale and marketing of properties
- Those whose involvement goes no further than disseminating or hosting adverts placed by another person, without otherwise participating in the sale
This is not necessarily permanent
The PPRA stressed that the court’s declarations still need to be confirmed by the Constitutional Court before they take effect. The BEE requirement for FFCs could return if:
- The Constitutional Court does not confirm the ruling, or
- Parliament later amends the law to correct the defects.
The same uncertainty applies to the changes to the definitions.
What property practitioners should do
- Check the PPRA’s notices. The current position applies for the duration of the suspension period.
- Don’t assume the change is final. Keep your BEE documentation in order in case the requirement returns.
- Make sure you hold a valid FFC. Operating without one remains a criminal offence.
- Get legal advice if you’re unsure whether the revised definition applies to you.
The bottom line
The PPRA’s confirmation removes a significant barrier for many practitioners, especially small businesses and individuals who were caught by the Level 8 requirement and the broad definitions. But it rests on an order that still awaits Constitutional Court confirmation, so the position could shift again.
Source: PPRA statement and High Court ruling, as reported by BusinessTech.
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