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South African law of agency

December 11, 2023

The law of agency in South Africa regulates the performance of a juristic act on behalf or in the name of one person ("the principal") by another ("the agent"), who is authorised by the principal to act, with the result that a legal tie (vinculum juris) arises between the principal and a third party, which creates, alters or discharges legal relations between the principal and a third party.[1][2][3][4][5][6][7] Kerr states that, in legal contexts, the word "agent" is most commonly used of a person whose activities are concerned with the formation, variation or termination of contractual obligations, and that agency has a corresponding meaning. It is the agent's position as the principal's authorised representative in affecting the principal's legal relations with third parties that is the essence of agency.

The term "agency" is sometimes used more broadly, to describe both the position of an agent as representative of a principal to perform juristic acts that affect the principal's legal relations with third parties, and also a relationship of mandate in which an "agent" is bound as mandatary to carry out some task for the principal as mandator.[8] In general, the aim of the appointment of an agent is the performance of a service for the principal, but many besides agents perform services for another. One must therefore consider other characteristics when identifying the nature of agency. It is the substance of the relationship that is important: The essence of agency is that the agent is the principal's authorised representative in effecting the principal's legal relationships with third parties.

Agency, representation and mandate edit

It is important to distinguish between the elements of representation and mandate.

Representation edit

Hosten refers to agency and representation interchangeably. The latter, however, refers to instances of purely juristic representation: Representation entails one person's performing a juristic act on behalf of another.[9][10] The agent's ability, as representative, to affect the principal's legal relations is primarily derived from, and its extent determined by, the agent's authority to do so. "An act of representation," held Corbett JAA in Joel Melamed and Hurwitz v Cleveland Estates (Pty) Ltd; Joel Melamed and Hurwitz v Vorner Investments (Pty) Ltd,[11] "needs to be authorized by the principal. Such authorization is usually contained in a contract." The authorisation of the representative is a distinct unilateral act. It is sometimes closely associated with an agreement between the parties, but may also arise by operation of law.[12][13] Although some representatives (such as public officials, company directors, guardians and curators) are often referred to loosely as agents, the current tendency is to reserve the term "agent" to denote a representative who is bound by contract with a principal to carry out a mandate and also authorised to create, alter or discharge legal relations for the principal.[14][15][16]

This modern notion of an agent as representative—that is, as someone who enters into contracts for a principal on which the agent usually cannot be held personally liable—was not generally recognised in Roman law.[17][18] The idea eventually came to form part of Roman-Dutch law,[19][20][21][22] although it was not developed to the same extent as the modern principles of commercial agency in England and America. As a result, South African courts have been greatly influenced by Anglo-American law in developing the South African law of agency.[23][24][25][26]

Mandate edit

Mandate (mandatum, Afr lasgewing) is a contract in which one person, the mandatary, undertakes to perform some lawful task for another, the mandator.[27][28][29][30][31][32][33][34][35] In Roman-Dutch law, the contract was said to be essentially gratuitous.[36] If the parties agreed on a payment for the services rendered, the contract was one of letting and hiring of work or services: locatio conductio operis[37] or operarum respectively.[38][39][40][41][42][43] It was accepted in practice, however, that the mandator might offer a reward or honorarium, not in payment but in gratitude, for the mandatary's services.[44][45][46] There is no objection in modern law to the remuneration of the mandatary, with the result that it is difficult to distinguish the contract of mandate from that of letting and hiring of work or services.[47][48][49]

In Roman law, the mandatary was not the mandator's representative.[50] Where the mandator concluded contracts with third parties in executing the mandate, the mandatary did so in his own name and not on the mandator's behalf. The rights and duties under such contract were the mandatary's alone. While the mandator could indirectly acquire rights against the third party by means of cession, he she could not do so directly.[51][52][53][54] The position in modern law is different. The mandate may well include a power to represent the mandator, but it need not do so.[55] For example, a person wishing to sell a house will often instruct an estate agent merely to find a suitable purchaser with whom the seller might conclude the sale personally, but may also authorise the estate agent to sell the property on the seller's behalf.[56]

Where the mandate involves, or is coupled with, a power (or authority) to represent the mandator, the mandatary is an agent.[57][58][59][60] The term "agent" is difficult to define, however, for it has a variety of meanings.[61][62] Sometimes it is used to denote the representation where the emphasis falls on the juristic relationship established by the agent between the principal and third party. At other times, it is used to refer to the contractual relationship between the principal and agent: the so-called "contract of agency" that in reality is a species of mandate.[63][64] Very often, the term is used in a broad sense to embrace both the contract between the principal and agent, and the concept of representation. This usage, while criticised,[65][66] is almost inescapable because both mandate and representation are obviously fundamental elements of the field of law generally referred to as the law of agency.[67]

In modern commercial law, the agent is simply and solely the representative of the principal, on whose behalf the agent transacts with third parties. Such transactions are the principal's transactions. They inure to the principal's benefit or render the principal liable, as the case may be, without any benefit or liability attaching to the agent. The agent acts merely as a conduit to bring about a legal relationship between the principal and the third party.[68]

Agency and other contracts edit

In SA law of contract: "independent contractor" normally used to mean conductor operis—one who's obliged to produce certain finished work.[69] "Typical examples," as cited by Kerr, "are a builder who is obliged to complete a house or a building, a manufacturer who is obliged to build a ship, a weaver who is obliged to make cloth from wool supplied to him, and a person who is obliged to wash or mend clothes."[70]

Independent contract operates in similar way to that of the mandatory. Conductores operis share with mandataries & employees an obligation to do the work they contract to do.[71][72] The contracts of all three of these classes differ fundamentally from those of independent agents.[73] IAs not obliged to do any work at all if they don't want to. IA not subject to any control/supervision of the locator; he is his own master. This is why, according to Kerr, description of IA as a locator operis, as in Colonial Mutual Life Assurance Society Ltd v Macdonald,[74][75] "is likely to cause confusion."[76]

It is not clear from report in Smit v Workmen's Compensation Commissioner whether or not the appellant insurance agent was an IA or one who was obliged to make use of opportunities to be of service to his principal.[77] If he were an independent agent, he could not have been a conductor operis. Since the court held that that is what he was, "it should be assumed that he was obliged to further his principal's interests."[78][79] What Kerr finds "puzzling" about the decision is that the court did not discuss whether or not he was a mandatary. If he had an obligation to further his principal's interests, the category of mandatary would have been "the more appropriate."[80]

The insurance agent in Colonial Mutual Life Assurance Society Ltd v Macdonald[81] was an independent agent.[82] In two of the three opinions in the case, however, he was described as an "independent contractor," because the case was on delict, and that is the term used in some delict cases—especially in English cases or cases influenced by them.[83] In English and American law, the division between "independent contractors," on the one hand, and those who are variously described as "agents" or "employees" (or "servants"), on the other hand, is based on the needs of the law of delict in respect of vicarious liability.[84] Writers on English law are aware of the handicaps inherent in such a proceeding,[85] "which is," for Kerr, "an added reason for not adopting it in our law."[86]

In South African law, the distinction between employees (or servants) and independent contractors is based on the distinction between locatio conductio operarum and locatio conductio operis faciendi. These categories, being contractual, "should be defined with the law of contract in mind."[87] In the case of employment, the employer is vicariously liable for the delictual acts of the employee committed during course of his employment. In the case of an independent contractor, the principal or locator is not delictually liable. The case of Chartaprops (Pty) Ltd & another v Silberman, highly important, illustrates this principle. Mrs Silberman was injured in casu when she slipped and fell in a shopping mall owned by Chartaprops, which had appointed a company, Advanced Planning, to do the cleaning of the mall. A slippery substance was left undetected by the employees of Advanced Planning; Silberman sustained an injury as a result, and sued both companies—Advanced Planning on the basis of the negligence of its employees in failing to detect and remove the substance, which had been lying on floor for about thirty minutes. There was evidence also that Chartaprops was in habit of checking on and inspecting Advanced Planning's activities. But Chartaprops, too, had failed to detect the substance. In court a quo, both respondents were found to be liable, jointly and severally. They appealed, and leave to do so was granted.

Nugent JA disagreed with the court a quo, which he said had erred in holding Chartaprops liable vicariously for the negligence of Advanced Planning. Liability, according to Nugent, could be found elsewhere, but it could not be on the basis of vicarious liability: "Where liability arises vicariously, it is because the defendant and the wrongdoer stand in a particular relationship to one another." According to Nugent, the rules which applied in this case did not involve the role of independent contractor; the employer is not and ought not to be held responsible for the actions of an independent contractor. The defendant might be responsible for its own omission, its own failure to act, or to perform its own legal duties, taking reasonable steps as articulated in Kruger v Coetzee.[88] Nugent applied the principle of non-delegability, based on English law: There was a duty on Chartaprops, as owner of the mall, to ensure that its visitors were reasonably safe. It could not shift this responsibility to the cleaning company. According to Nugent, therefore, liability rested on Chartaprops as the owner of the premises: "A person who invites the public to frequent a shopping mall will be expected by members of the public to have ensured that the floors of the premises are reasonably safe and they will expect to look to that person if they are not."[89] Chartaprops had failed, in Nugent's view, in its duty to the public to ensure that its premises were safe. Nugent exonerated Advanced Planning on the grounds that it owed no such duty to the public; any omission on its part was therefore not actionable. This judgment, although progressive, is clearly wrong, according to Richman Mqeke, since it is based on non-delegability.

The majority judgment, written by Ponnan JA, disagreed with Nugent's for the same reason. The principal, on his view, is not liable for wrongs committed by an independent contractor or its employees. Ponnan relied on a number of cases, most important of these being Langley Fox Building Partnership v De Valence 1991 (1) SA 1 (A), in which the Appellate Division held that the principal is not liable for the civil wrongs of an independent contractor, and that the principal would only be liable if personally at fault. Ponnan also referred to classic test in Kruger, but he applied it differently:

(a) (W)ould a reasonable man have foreseen the risk of danger in consequence of the work he employed the contractor to perform? If so,

(b) would a reasonable man have taken steps to guard against the danger? If so,

(c) were such steps duly taken in the case in question?

According to Ponnan, there was no justification for making an exception in the case under consideration, in order to allow a person who is injured to recover from a principal in addition to the normal rights which an injured person should enjoy against the independent contractor. Ponnan also pointed out that there was no justification, in the fiction of the principle of non-delegability, for shifting the economic cost of the negligent acts of Advanced Planning, which was primarily responsible for the damage, to Chartaprops. The principle of non-delegability, according to Ponnan, had caused a great deal of misunderstanding. Ponnan held that the position in Roman-Dutch law, as articulated in some of cases he named,[citation needed] should not be changed. He thus restated the long-standing authority of the Roman-Dutch position. If the view of Nugent had been the majority view, it would have changed current South African law.[90]

The most important proposition concerning contracts of employment, therefore, "is not that there is vicarious liability in delict: it is that the employee is obliged to do whatever work falls within the compass of the agreement,[91] and that the employer is obliged to pay whatever remuneration has been agreed upon. If the rules of the law of delict require that attention be paid to differing categories of persons it is for those rules to lay down what categories are necessary in delict."[92][93] The choice in delict seems to Kerr to be between

  1. delimiting categories according to the requirements of that branch of the law, and giving the categories so delimited new titles of their own; and
  2. making use of established categories in the law of contract.

If the categories of the law of contract are adopted, "the limits of those categories [...] should be adopted." The more strictly the principle of retaining contractual descriptions of contractual categories is adhered to, "the more valuable will cases in either branch of the law be when a decision in the other branch of the law is under consideration and the person in question falls into a category which is relevant in both branches."

It is not only in case law that one has difficulty with the term "independent contractor." An example of a difficulty in statute law is to be found in the law relating to estate agents. The term "independent contractor" does not normally mean an employee,[94] but rule 3.15 of the Estate Agent's Code of Conduct speaks of an estate agent's being "in the service of" another estate agent "as . . . an independent contractor." Item 3 of the Specification of Services said that "a person rendering any of the aforesaid services [in paras (a)(i), (a)(ii) or (a)(iii) of the definition of 'estate agent' in the Act] as an independent contractor shall be deemed to do so as an employee of an estate agent." Delport suggests that the purpose of the Notice was to rectify the problem which arose as a result of the introduction of the expression "independent contractor" in section 26 of the Act.[95] Kerr does not think that "deeming" all independent agents and mandataries (if that is what is meant in this context by "independent contractors") to be "employees" either "solves, or is a suitable way to solve, the problem." Section 26 of the Act was intended to ensure that all those practising as estate agents had fidelity fund certificates. It referred to "an independent contractor rendering services to" an estate agent. "Rendering services" appears to Kerr to have been be used in the general sense; "it does not appear to mean that independent agents have contracts of locatio conductio operarum."

Agency powers edit

An agent is empowered primarily to carry out some or all of the following acts:

  • most commonly, conclude contracts for the principal and thereby acquire personal rights for the principal as against third parties and incur obligations on the part of the principal in respect of third parties;
  • receive performance of third parties' obligations to the principal, and thereby extinguish the obligations and, in the case of receiving property, acquire real rights for the principal;
  • perform the principal's obligations to third parties, and thereby discharge the obligations and, in the case of delivering property to third parties, extinguish the principal's real rights.

Scope of agency edit

Agents are classified as special or general.[96][97][98][99][100][101] A special agent is one engaged by a principal for a particular transaction or specific, limited purpose.[102] A general agent is one authorised to act for a principal in all transactions of a particular nature, or in all matters concerning a particular business, or in all transactions that the principal could perform personally.[103][104][105][106]

Agents and other fiduciaries edit

The term agent is often applied indiscriminately to any person who performs some act on behalf of another, and who, in a loose sense, represents that person. Such "agents" are then classified according to the nature of the acts they perform. However, many of these "agents" are not, in law, agents because they lack the power to bind their principals, which is the distinctive element of agency. Instead, they are merely fiduciaries.

The following persons act in a fiduciary capacity but not as agents sensu stricto:

  • Brokers facilitate communication between parties engaged in negotiations to conclude a contract. The broker, as such, does not have the power to conclude the contract on behalf of either of the parties.[107][108][109][110][111][112]
  • Factors sell their principals' goods, the possession of which has been consigned to them. The factor usually contracts in their own name with the buyer and thus incurs personal liability under the contract.[113][114][115][116][117]
  • Del credere agents sell their principals' goods and undertake to indemnify their principals in the event of the purchaser breaching the contract. This undertaking commonly entails guaranteeing payment of the purchase price.[118][119][120][121]
  • Auctioneers sell their principal's property by public auction.[122][123][124][125][126][127]
  • Estate agents negotiate the sale of immovable property. The estate agent is generally engaged merely to find a suitable buyer, not to conclude the sale on the principal's behalf. An estate agent is not, strictly speaking, even a mandatary, since he is not under any obligation to execute the task entrusted; there is merely an incentive for the estate agent to do so, in the form of an opportunity to earn a commission.[128]
  • Attorneys enforce, defend, or settle their clients' rights or claims against adverse third parties, either in or out of court.[129]
  • Notaries draft wills, draw up and attest antenuptial contracts, notarial bonds, donations, prospecting contracts and mining leases, and other instruments for their clients.[130]
  • Conveyancers prepare deeds of transfer, certificates of title, and mortgage bonds for registration on their clients' behalf.[131]
  • Advocates are authorised to conduct trial proceedings on their clients' behalf.[132]
  • Guardians and curators manage the affairs of persons incompetent to do so themselves.[133]
  • Executors liquidate and distribute deceased persons' estates.[134]
  • Administrators or testamentary trustees manage deceased persons' property, invest their funds, and apply the income in accordance with the provisions of wills.[135]
  • Trustees and liquidators in insolvency liquidate and distribute insolvent persons' estates.[136]
  • Trustees under inter vivos trust deeds administer assets and funds settled on them, for the benefit of others.[137]
  • Trust companies and boards of executors administer deceased and insolvent persons' estates; raise loans and invest capital on behalf of principals; and generally conduct agency work of all kinds, including buying, selling and letting of immovable property.[138]

Agent's authority edit

The agent's authority to represent the principal constitutes the essence of commercial agency which may be formed in a number of ways. The principal may authorise the agent by express or implied appointment. Generally, the acts of an "agent" without actual authority cannot bind the principal. The principal may, however, be estopped from denying the agent's authority. The principal may also ratify the agent's unauthorised acts.

Actual authority edit

There is only one source of authority recognised in South African law: actual (factual) authority.

Agency by appointment edit

Express authority edit

The principal may expressly appoint authority on the agent to perform juristic acts on the principal's behalf. The appointment is a unilateral juristic act whereby authority is declared in clear, direct, and definite terms. It indicates to third parties the principal's intention to be bound by the agent's acts performed within the scope of the authority appointed.[139] Although it is frequently linked with, or evidenced by, a contract between the principal and agent, the appointment is a distinct juristic act: the authority of the agent is derived not from the contract but from the appointment it embodies.[140]

Generally, no formalities are required for an agent's authorisation; an oral appointment will suffice.[141] Written appointment usually takes the form of a "power of attorney." A power of attorney is a legal instrument setting out the powers conferred on the agent, and may be either special or general. A power of attorney is legally required in only a few cases, namely when required by some law or regulation, or established practice,[142] for example to appoint an attorney to prosecute an appeal in the High Court,[143] or a conveyancer to pass transfer of a mortgage bond,[144] or an agent to represent a principal in a contract for the alienation of land.[145] Where a company concludes a contract that must be in writing, the person signing as or for the company does not have to be appointed in writing for the transaction to be binding.[146]

Since the power of attorney readily and conveniently furnishes proof of an agent's authority, banking and financial institutions, and businesspersons generally, usually require agents to exhibit powers of attorney before entering into transactions with them.

Although there is no general law prescribing formalities for powers of attorney, there are requirements for powers of attorney for certain specific purposes. For example, if the power of attorney is to be used in a deeds registry, it must be attested either by two witnesses above the age of fourteen years and competent to give evidence in a court of law, or by a magistrate, justice of the peace, commissioner of oaths or notary public, but no person who derives any benefit under such power of attorney may attest it.[147] A power of attorney, whether special or general, is no longer subject to stamp duty.[148] General powers of attorney, and also powers of attorney to carry out a series of acts or transactions, may be registered in the Deeds Registry.[149]

Tacit authority edit

An agent's authority to perform juristic acts on the principal's behalf may be conferred impliedly: that is, rather by conduct than by the spoken or written word.[150] Whether such a tacit authority exists is a question of fact, dependent on the principal's intention, and is to be inferred from the agent's words and conduct, and from admissible evidence of surrounding circumstances.[151] For example, persons who appoint others to manage their general dealer's business usually intend to confer authority to enter into all such transactions as are reasonably incidental to the management of the business, even if this is not expressly stated.[152] The authority does not arise by operation of law, as is sometimes suggested.[153] Rather, it is a question of the principal's intention and arises by implied agreement, by custom or industry practice, or is inferred as being reasonably necessary to carry out express authority ("incidental authority").

Tacit authority is a form of actual authority. It is no less effective, once proved, than express authority. It should not, however, be confused with the so-called "ostensible" or "apparent" authority encountered when a principal is estopped from denying the agent's authority, to protect the interests of third parties. Instead, it is the agent who must acknowledge the agency relationship, to protect the principal's interests.

Involuntary agency edit

In some cases, where there is no express or implied appointment, a person may have authority (or, more properly, power)[154] by operation of law to represent another. This is not agency in the conventional sense, but rather juristic representation. The person's power to represent the other is, in these cases, derived not from manifestation of consent but from an appointment or office, or from a relationship between the parties.[155] The primary examples of such representatives are:

  • a partner for co-partners in a partnership;
  • a company board of directors for the company;
  • a guardian for a ward or pupil;
  • a curator for a prodigal or a mentally ill person;
  • state officials for the state; and
  • a trustee for an insolvent estate.[156]

Agency by estoppel edit

Where an agent does not have actual authority, and the principal's words or conduct may be such as to prevent the principal in law, or to estop the principal, from denying that the agent has authority. Where Arthur misleads Kallis by words or by conduct that could reasonably be expected to mislead into believing that Boucher has authority to act for Arthur, and Kallis, relying, reasonably where there is no intention or negligence on Arthur's part, on Arthur's representation, enters into a transaction with Boucher to Kallis's prejudice, then Arthur will be precluded from denying that Boucher had authority. Arthur will be bound by the resulting contract as if Boucher had had the necessary authority to conclude such a transaction on Arthur's behalf, even though Boucher did not actually have such authority.[157] An example of such conduct would be if Arthur allowed Boucher to receive money for Arthur from Kallis on a number of occasions. If, then, on a subsequent occasion, Boucher again received money from Kallis, but failed to pay it over to Arthur, Arthur could not claim that amount from Kallis on the basis that it was owing because Arthur had not received payment. Arthur is precluded by Arthur's previous conduct from denying that Boucher had authority to receive the payment on Arthur's behalf. In other words, Arthur is estopped from denying that Boucher acted as Arthur's agent in receiving the money from Kallis. In paying Boucher, Kallis is deemed to have paid Arthur and has discharged the obligation.[158]

Agency by ratification edit

If Boucher, without express or implied authority, enters into a transaction on Arthur's behalf, Arthur may, after a full disclosure of all the facts, ratify the transaction.[159] The ratification may be express or implied. The effect of a valid ratification is to cloak the purported agent's unauthorised acts with authority retrospectively, establishing the relationship of principal and agent after the fact with retroactive effect, with the usual consequences of agency.[160]

This power of ratification, however, can be exercised only if two conditions are satisfied:

  1. if Boucher professed to be acting as an agent, representing to the third party that he was acting on behalf of a principal;[161] and
  2. if, at the time of the transaction, Arthur was actually in existence.[162]

A principal may not ratify a transaction in part and repudiate it in part. If the principal elects to ratify the transaction, the entire transaction must be ratified, not merely selected parts of it.[163] Ratification by the principal may be implied if, for example, with full knowledge of the facts, the principal accepts some benefit under the transaction,[164] or even, in some cases, deliberately maintains silence and fails to repudiate the transaction within a reasonable time.[165]

Legal effect of agency edit

Principal-agent relationship edit

The terms of the contract between the principal and agent govern their legal relations.

Agent's obligations edit

The agent must perform the task entrusted by the principal

  • personally;
  • in accordance with instructions;
  • with reasonable care, skill and diligence;
  • in good faith;
  • must render an account to the principal; and
  • must deliver any proceeds of the mandate.
Personal performance edit

An agent must perform the mandate in person. Except with the principal's express or implied consent, the agent may not delegate duties or engage a sub-agent.[166] Where, however, such delegation is necessary to carry out the agency, or is customary in the ordinary course of business, a tacit agreement to delegate may be inferred.[167] Where the agent justifiably engages a sub-agent, privity of contract does not arise between the principal and the sub-agent, unless it can be shown that they intended to bind themselves to each other.[168]

Obedience to principal's instructions edit

An agent must act in accordance with, and within the limits of, the authority conferred by the principal, whether express or implied.[169] If an agent, either negligently or fraudulently, fails to perform the mandate or performs it improperly, and thereby causes loss to the principal, the agent is liable to the principal in damages.[170]

The agent is also liable to the principal in damages if the agent causes loss to the principal while acting within the scope of the agent's ostensible authority, but in excess of the principal's instructions.[171]

Care, skill and diligence edit

An agent must carry out instructions with due care, skill and diligence.[172] The standard of care is that of a reasonable and prudent person in the circumstances.[173] Where the performance of the mandate requires special knowledge, skill or qualifications, the agent, by undertaking to carry out the mandate, impliedly warrants possession of the requisite knowledge, skill and qualifications.[174]

Good faith edit

An agent must carry out his or her duties in good faith.[175] Broadly speaking, this means that the agent must conduct the principal's affairs in the principal's interests and not for the agent's benefit.[176] A number of specific duties are included in this broadly stated duty.

An agent must not allow his interests and duties to conflict with each other. If, for example, the agent is engaged to buy property, the agent may not sell his own property to the principal. If engaged to sell the principal's property, the agent may not purchase it. Without the principal's knowledge and consent, the agent may not acquire any personal profit or benefit, other than any remuneration due in terms of the agency.[177] Where a house owner authorised an agent to sell the house for £2,000, and the agent, knowing that a third party was willing to pay that amount, persuaded the owner to sell the house to the agent for £1,800, and immediately then sold the house to the third party for £2,000, the owner was held to be entitled to claim the difference of £200 from the agent.[178] Likewise, an agent instructed to sell property for a specified sum net is not entitled to retain any surplus if he succeeds in obtaining a higher price.[179]

Account by agent edit

An agent must render to the principal an account of all that the agent has done in connection with the authorized transaction.[180] In addition, the agent is under a continuing obligation to allow the principal to inspect books and relevant vouchers relating to authorised transactions.[181]

Delivery of proceeds of mandate edit

An agent must deliver all the property, together with its benefits or accessories, or documents, to the principal and must pay the principal all the proceeds received in connection with the transaction.[182] This includes all "secret profits" made by the agent.[183] An agent who uses the proceeds, including moneys, received from the transaction for that agent's own purposes is guilty of theft.[184]

If a duly-authorised agent has transacted in the name of a principal, any property received by the agent belongs to the principal. No further delivery to the principal is necessary to pass ownership to the principal.[185] Equally, if the agent contracts in the name of the principal, the latter becomes a party to the contract, and no cession of rights to the principal is necessary.[186]

Principal's obligations edit

The obligations of the principal to the agent are

  • to pay the agent's remuneration;
  • to refund expenses; and
  • to indemnify the agent.
Agent's remuneration edit

The principal must pay the agent the agreed, usual or reasonable remuneration or commission. As a rule, the agent is entitled to remuneration only if the whole mandate has, or all the services agreed have, been completed[187] or substantially performed.[188]

There is no substantial performance by the agent where, for example, the principal instructs the agent to sell land, and the agent sells the land to a person prohibited by law from purchasing it.[189] In such a case, the agent is not entitled to any remuneration. Nor is the agent entitled to commission where the principal is willing to sell the property for a fixed sum, free of commission, and the agent sells the property for the fixed sum only.[190] In the case of estate agents, the usual agreement is that the agent is entitled to commission if the principal actually enters into a contract with a person introduced by the agent. An agent cannot claim commission for the mere introduction of a person willing and able to contract on the principal's terms, unless an agreement to that effect is proved. In the case of a mandate "to find a purchaser," the agent's commission is usually payable on completion of a valid sale.[191]

If the agent substantially performs the mandate, the agent is entitled to remuneration even though the principal negligently or intentionally fails to take the benefit of the services.[192] Even if the agent has not completed the mandate, the agent is entitled to remuneration where prevented by the wrongful act or dolus of the principal from so doing.[193] Likewise, the agent is entitled to commission where the transaction was completed by another person, but the agent performed the acts that were the efficient cause, or causa causans, of the transaction,[194] although not, of course, if the agent's services were not the efficient cause of the transaction.[195]

If the agent has performed the mandate, but the services have not been duly and faithfully rendered, the agent forfeits the right to remuneration or commission[196]—for example, if the agent is instructed to sell the principal's property and buys it,[197] or takes a secret commission.[198]

Amount of remuneration edit

The amount of the remuneration[199] may be fixed by agreement, expressly or impliedly, either on a time basis, or in a definite sum of money, or as a percentage of the value of the subject matter of the transaction, in which case the remuneration is known as "commission." In the absence of an agreement, the amount of remuneration is regulated, in the case of regular agents, such as auctioneers, estate agents, brokers and factors, by the custom or trade usage of the particular business or kind of agency, and the amount is almost invariably calculated on a percentage basis. Casual agents, to whose services a tariff is not applicable, are entitled to an amount reasonable in the circumstances,[200] sometimes referred to as a quantum meruit.[201] The agent, in return, may claim from the principal an account supported by vouchers if that is necessary to enable the agent to formulate the claim for remuneration.[202]

Agent's expenses edit

The principal must refund to the agent all expenses reasonably and properly incurred by the agent in carrying out the mandate,[203] including interest on outlays and advances necessarily made by the agent in its execution.[204]

Indemnity edit

The principal must indemnify the agent for all loss or liability duly incurred by the agent in the execution of the mandate, or directly caused to the agent by the execution.[205]

Relations between principal and third persons edit

The relations between the principal and third persons vary according to whether the agent, in concluding a transaction, has

  • acted within the scope of the authority granted and has disclosed the fact that he acted as an agent; or
  • exceeded the authority; or
  • concealed his capacity; or
  • acted corruptly.

Agent acts within authority edit

Where an agent has disclosed that he acts for a principal, and has acted within the scope of the express or implied authority conferred, a transaction effected by the agent with a third party is binding as between the principal and the third person.[206] There is no necessity for the agent to cede any rights to the principal, because the principal, as party to the contract with the third party, may enforce his or her own rights under the contract.[207] Equally, liability under the contract is imposed directly on the principal who may be sued by the third party.[208] No benefit or liability under the transaction attaches to the agent.[209] Even if the agent has not acted in the interests of the principal, or has actually defrauded the principal, the latter is bound by the transaction, if the third person was not a party to the irregularity, and if the agent acted in fact within the express or implied scope of his authority.[210]

Agent exceeds authority edit

Where the agent exceeds the express or implied authority in transacting, the principal is not bound by the transaction.[211] If, however, the principal has been enriched by or has benefited from the transaction at the expense of the third party, the principal is bound to the third party to the extent that the principal has been enriched.[212] The principal is not obliged to accept such benefit, and may make restitution.[213]

On the other hand, where the agent has acted within his ostensible authority, but has, unknown to the third party, exceeded the private instructions of the principal, the principal is bound by the transaction based on estoppel. The principal has, however, a right of action against the agent for any loss sustained by the principal.[214]

Where an agent, in the course of his engagement, acquires knowledge of some fact that it is his or her duty to communicate to the principal, and fails to do so, the notice is imputed to the principal.[215] Only actual, and not constructive, knowledge of the agent can be imputed to the principal.[216]

Agent conceals capacity (undisclosed principal) edit

If an agent does not disclose to a third party that he is acting as agent, and concludes a contract with the third party as if he were the principal in the transaction, the third party may treat the contract as binding on the agent. The third party may sue the agent, as principal, on the contract; equally the agent may, as principal, sue the third party on the contract.[217] When, however, the undisclosed principal discovers that the contract that he in fact authorised has been concluded, he may adopt it, and may consequently sue the third party on it.[218] Equally, the third party, on discovering the undisclosed principal, may sue the principal on the contract.[219] it follows that the third party has a choice or an election to sue either the agent or the undisclosed principal, when discovered; but having elected to sue one of them the third party is debarred from suing the other, even if he or she sues the agent before being aware that there is a principal.[220] The third party may be sued on the contract by either the principal or agent, but not by both, the principal having the preferential right to do so.[221]

The position of the undisclosed principal is altogether different from that of the unnamed principal. Where an agent discloses that he or she is acting as agent but does not disclose the identity of that principal, the normal rules of representation apply: The contract creates rights and obligations for the unnamed principal and the third party, not for the agent.[222]

Agent acts corruptly edit

Where the agent is given or promised a secret benefit by the third party to a contract that is intended to influence the agent in that party's favour, the gift is a bribe, and the principal has the choice of repudiating the contract or affirming it, and obtaining such relief as the court may think adequate.[223][224]

Relations between agent and third parties edit

Agent edit

Where the agent has concluded a transaction with a third party within the scope of the agent's authority, no rights or obligations ensue as between the agent and the third party.[225] For example, if Arthur, in his capacity as the lawful agent of Boucher, borrows money from Kallis, Arthur is not liable to repay the money to Kallis, and cannot be sued by Kallis for it.[226]

In the following cases, however, an agent is liable personally on the contract:

  • where the agent agreed to be personally liable;[227] and
  • where the agent did not disclose to the third party that he or she was acting as an agent.[228]

Where an "agent" acts on behalf of a "principal" who does not exist,[229] or lacks legal capacity,[230] it is sometimes said that the "agent" is liable personally on the contract.[231] This proposition holds good only when it can be shown, as a matter of construction, that the so-called agent in fact acted as a principal party to the contract.[232] Of course, if the "agent" was aware of the true state of affairs, and acted fraudulently, the agent may be held liable in delict.[233] "So too, perhaps, if the agent acted negligently."[234] If the agent warranted that he or she had authority to act for the principal, the agent may be held liable for breach of warranty of authority.[235]

Agent exceeds authority edit

Where the agent exceeds his authority in concluding a contract, the agent is liable to the third party, not on the contract, but for damages for breach of an implied warranty of authority. The measure of damages claimable by the third party is the amount of loss sustained by the third party because of the non-performance of the intended contract by the principal.[236]

Termination of agent's authority edit

Since the authorisation and the contract of mandate are distinct juristic acts, the rules that govern the termination of the agent's authority to bind the principal are not necessarily the same as those governing the termination of the contractual relationship between the principal and agent.[237] The contract of mandate may be terminated by any of the methods applicable to contracts generally: for example, by performance or by the mutual consent of the parties. An executory contract of mandate may, however, generally be terminated by the unilateral act of either party—revocation[238] by the mandatory (principal) or renunciation[239] by the mandatary (agent)—unless the express or implied terms of the contract dictate otherwise.[240] This rule, which runs contrary to accepted contractual principles, is derived from the common law, where mandate was essentially a gratuitous contract. In modern law, the mandatary is usually remunerated for services rendered; in such cases, at least, it is doubtful whether the contract is freely terminable at either party's will.[241]

An agent's authority to conclude juristic acts on behalf of the principal may be terminated by any of the following occurrences:

  • performance of the authorised transaction;[242]
  • effluxion of time, which may occur if a time limit has been fixed by the parties,[243] or, in the absence of a stipulated time, when a reasonable time has elapsed;
  • death of the principal,[244] or the principal's insanity,[245] insolvency,[246] or attainment of majority;[247]
  • death of the agent or the agent's insanity;[248] and
  • revocation by the principal. Save for certain possible exceptions, discussed below, the principal may summarily revoke the agent's authority to perform a juristic act on the principal's behalf, if the act in question has not already been performed. This is so even if the authority is expressed to be irrevocable.[249] If Arthur, for example, engages Boucher to find a suitable person to buy Arthur's house, and authorises Boucher to sell the house, Arthur may revoke the authority granted to Boucher. After such revocation, Boucher cannot bind Arthur to a sale of the house, though Boucher may claim damages from Arthur for breach of contract. In order to be effective as against interested third parties, however, the revocation of authority must be communicated to such third parties.[250]

Irrevocable authority edit

The question of whether an authority conclude a juristic act on behalf of another can be granted irrevocably is a controversial one.[251] It has been held, in a number of cases, that an authority is irrevocable, in the strict sense, where the agent is appointed procurator in rem suam: that is, where the agent is authorised to do an act for the agent's own benefit, and not for the principal's; or, as it is generally styled, the authority is "coupled with an interest" or "forms part of a security,"[252] for example, where an agent is authorised to pass a bond in his own favour over the principal's property.[253] This proposition reflects Anglo-American rather than Roman-Dutch law, which consistently refused to recognise the validity of a procurator in rem suam mentioned by Voet.[254] Such a procurator was, in Voet's time, no more than a cessionary, and, of course, the cedent lacked the power to revoke the cession unilaterally.[255] Whether the Supreme Court of Appeal will accept that an authority "coupled with an interest" is irrevocable remains to be seen. "The better view," writes Graham Bradfield, "appears to be that an authority is always revocable, even if it is linked with a contract of mandate, which cannot be terminated unilaterally."[256][257] Of course, if the principal has contracted not to revoke the authority, but does so, the principal will be liable in damages for breach of contract.[258]

See also edit

References edit

Books edit

  • J.E. De Villiers, J.C. Macintosh & D.B. Knight. Law of Agency in South Africa, 2nd revised edn. Cape Town: Juta, 1956.
  • James Thomas Riley Gibson. South African mercantile and company law, 8th edn. Revised by Coenraad Visser. Lansdowne: Juta, 2005.
  • D.J. Joubert. Die Suid-Afrikaanse verteenwoordigingsreg. Cape Town: Juta, 1979.
  • Ellison Kahn. Contract and Mercantile Law through the Cases: A Collection of Extracts from Decisions of the Courts, vol. 1. Cape Town: Juta, 1971.
  • Alastair James Kerr. The Law of Agency. Durban: Butterworths, 1972 (4th edn. 2006).
  • B.A. Schuijling. "Representation, power of attorney and mandate", chap. 7 of Introduction to Dutch law, 5th edn. Eds. Jeroen Chorus, Ewoud Hondius, & Wim Voermans. Alphen aan den Rijn: Kluwer Law International, 2016.
  • Johan Scott & Steve Cornelius, eds. "The law of agency", in The Law of Commerce in South Africa, 2nd edn. Cape Town: Oxford University Press Southern Africa, 2015.
  • B.P. Wanda. "Agency and representation", in The Law of South Africa, 2nd edn. Vol. 1. Eds. W A Joubert & J A Faris. Durban: LexisNexis Butterworths, 2003.
  • Reinhard Zimmermann. The Law of Obligations: Roman Foundations of the Civilian Tradition. Oxford: Oxford University Press, 1996.

Cases edit

Notes edit

  1. ^ Tolalisator Agency Board OFS v Livanos 1987 (3) SA 283 (W) 291.
  2. ^ Mason v Vacuum Oil Co. of SA Ltd 1936 CPD 219 at 223.
  3. ^ Whittal v Alexandria Municipality 1966 (4) SA 297 (F) 301.
  4. ^ Stuart 1966 Annual Survey 99-100.
  5. ^ Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 176.
  6. ^ See Gibson Mercantile and Company Law chap 6.
  7. ^ See Wanda (DeWet) "Agency" LAWSA 2 ed vol 1.
  8. ^ Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 175.
  9. ^ Totalisator Agency Board OFS v Livanos.
  10. ^ Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 176.
  11. ^ 1984 (3) SA 155 (A).
  12. ^ Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 175.
  13. ^ De Villiers & Macintosh Agency 2-3.
  14. ^ Whittal v Alexandria Municipality.
  15. ^ De Villiers & Macintosh Agency 3.
  16. ^ See, however, Wanda "Agency" LAWSA 2 ed vol 1 § 175.
  17. ^ Transvaal Cold Storage Co Ltd v Palmer 1904 TS 4 at 19.
  18. ^ Zimmermann Obligations 45-56.
  19. ^ On the historical development of agency in South African law, see De Villiers & Macintosh Agency 4-13.
  20. ^ See also De Wet (1942) 6 THRHR 99, 210.
  21. ^ See Joubert "Agency and Stipulatio Alteri" in Zimmermann & Visser Southern Cross 335.
  22. ^ See Zimmermann Obligations 45-58.
  23. ^ See Faure v Louw (1880) 1 SC 3 at 7.
  24. ^ See Goodricke & Son v Auto Protection Insurance Co Ltd 1967 (2) SA 501 (W) 503-504.
  25. ^ Lee Introduction to Roman-Dutch Law 310.
  26. ^ Joubert Verteenwoordigingsreg 17-18.
  27. ^ Grotius 312.2.
  28. ^ Voet 17.1.2.
  29. ^ Van der Linden 1.15.14.3.
  30. ^ See Pothier Mandat Prelim Art.
  31. ^ See Mason v Vacuum Oil 222-224.
  32. ^ See Blower v Van Noorden 1909 TS 890 at 897.
  33. ^ Totalisator Agency Board DES v Livanos.
  34. ^ See Joubert & Van Zyl (Van Zyl) "Mandate and Negotiorum Gestio" LAWSA First Re-issue vol 17.
  35. ^ De Wet & Van Wyk Kontraktereg 386-389.
  36. ^ Joubert & Van Zyl (Van Zyl) "Mandate and Negotiorum Gestio" LAWSA First Re-issue vol 17 § 4 and the authorities cited there.
  37. ^ In this type of contract, a piece of work (operis) is let out by the conductor to the locator.
  38. ^ D 17.1.1.4.
  39. ^ Grotius 3.12.6.
  40. ^ Van der Linden 1.15.14.3.
  41. ^ Huber 3.12.6.
  42. ^ Pothier Mandat § 3.
  43. ^ See, however, Voet 17.1.2.
  44. ^ D 17.1.6 pr, 17.1.7, 17.1.36.1.
  45. ^ De Villiers & Macintosh Agency 9.
  46. ^ Totalisator Agency Board DES v Livanos.
  47. ^ See Kahn Contract and Mercantile Law I 849.
  48. ^ Kerr (1979) 96 SALJ 323.
  49. ^ Joubert & Van Zyl (Van Zyl) "Mandate and Negotiorum Gestio" LAWSA First Re-issue vol 17 § 5-6.
  50. ^ For the mandatary's position in Roman law in this regard, see generally Zimmermann Obligations 45-56.
  51. ^ D 17.1.26.8.
  52. ^ Totailsator Agency Board DES v Livanos.
  53. ^ De Villiers & Macintosh Agency 7.
  54. ^ Zimmermann Obligations 49-50.
  55. ^ Joubert & Van Zyl (Van Zyl) "Mandate and Negotiorum Gestio" LAWSA First Re-issue vol 17 § 2-3.
  56. ^ The Firs Investment Ltd v Levy Bros Estates (Pty) Ltd 1984 (2) SA 881 (A).
  57. ^ The Firs Investment v Levy Bros Estates 885.
  58. ^ Totalisator Agency Board OFS v Livanos.
  59. ^ Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 175.
  60. ^ Joubert & Van Zyl (Van Zyl) "Mandate and Negotiorum Gestio" LAWSA First Re-issue vol 17 § 6.
  61. ^ Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 175.
  62. ^ Kahn Contract and Mercantile Law I 848-9.
  63. ^ Totalisator Agency Board OFS v Livanos.
  64. ^ Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 175.
  65. ^ Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 175.
  66. ^ Kahn Contract and Mercantile Law I 849.
  67. ^ Kerr Agency 2-10.
  68. ^ Blower v Van Noorden 899.
  69. ^ Kerr Agency 14. Smit v Workmen's Compensation Commissioner 1979 1 SA 51 (A) 58A, 61B, E; Lee, Roman Law, 320-321; Schulz 542; Thomas, Textbook, 296; Van Warmelo para 487; Van Zyl, Roman Law, 304-305; Zimmermann 393. Lee: distinction between sub-categories of locatio conductio "is not sharply drawn in the texts of Roman law." Schulz believes distinction should be abandoned altogether (544). See also ADE Lewis, "The Trichotomy in Locatio Conductio", (1973) 8 The Irish Jurist 164. Zimmermann: "It would be quite ahistorical to superimpose systematic distinctions over the Roman sources or to approach them with modem categories in mind. On the other hand, the Roman sources usually provide the historical foundation, the casuistic basis for these classifying and structuring efforts of the later civilians; and in order to prevent the modern lawyer from drowning in the flood of Roman case law, some sort of systematic life jacket appears to be indispensable" (340). Kerr: The distinction between the sub-categories "is firmly embedded in modern law. Even if it were to be abandoned the independent contractor's contract would still be locatio conductio and not mandatum" (Kerr 14).
  70. ^ Agency 14-15.
  71. ^ On significant differences between contracts of mandate & of locatio conductio operis, See Kerr's note on Smit's case in (1979) 96 SALJ 323. Emphasis on requirement of good faith in mandataries not found to same extent in authorities on locatio conductio operis, although conductores operis have to show necessary degree of skill. Mandatary is bound to impart information in circumstances in which a conductor operis is apparently entitled to remain silent without being in breach of contract: See Smit's case 61G. Mandatary bound to account to his mandator; a conductor operis not bound to account to locator operis: Smit's case 61G. With certain exceptions, mandatary entitled to indemnification in respect of expenses/liabilities incurred, loss/damage suffered in execution of mandate. No comparable rules in favour of conductores operis. Also special rules on termination of mandates.
  72. ^ For what Kerr describes as "a new, detailed, and comparative approach to construction contracts," see RC van Deventer The Law of Construction Contracts. Chancery Law Publishing and Juta & Co Ltd 1993.
  73. ^ See Kerr Agency 10-11.
  74. ^ 1931 AD 412. See especially 432-434.
  75. ^ See the comment on this case in Smit v Workmen's Compensation Commissioner 1979 1 SA 51(A) 61H-62A.
  76. ^ Agency 15.
  77. ^ See Kerr's comment on the case in (1979) 96 SALJ 323 at 324.
  78. ^ Kerr Agency 15.
  79. ^ It is said in the case at 55D that "he had to obtain proposals for insurance."
  80. ^ Kerr Agency 15. See Kerr (1979) 96 SALJ 323 at 325-326. The cases there referred to are on estate agents. "The court did not appear to think" that the Digest reference to those who transport goods or passengers (cited in Smit's case at 5 pr) as conductores operis could ground a distinction between travel agents and estate agents. Schulz says, at 543, "Locare means [...] 'to place out', ie to entrust something to a person. The etymology of conducere is obscure [....] If somebody received a thing in order [to] transport it to another place, he was called conductor because he took the thing with him (rem perferendam conduxit); the sender was called locator because he 'placed' the thing in the hands of the carrier." Kerr opines that "this does not give ground for classifying travel agents with those who transport goods or passengers" (Agency 15).
  81. ^ 1931 AD 412.
  82. ^ 11.
  83. ^ See especially De Villiers CJ at 432-434 and Wessels JA at 442, 445. See also R v AMCA Services Ltd and another 1959 (4) SA 207 (A) 212A-D.
  84. ^ Bowstead & Reynolds 1-026, 1-030, 8-176ff; 2 Chitty on Contracts, para 32-010. Two examples may be quoted: the American Restatement on Agency, 2 ed, says in its comment b to §2: "The word 'servant' is used [in the definition in §2] in contrast with 'independent contractor'. The latter term includes all persons who contract to do something for another but who are not servants in doing the work undertaken." The cross references in the comments to §2 are mainly to sections dealing with tort and it seems therefore that the definition is framed with delict in mind. Writing on the English Law of torts Professor PS Atiyah (Vicarious Liability in the Law of Torts (1967)) also divides all persons who need to be considered in cases involving vicarious liability into two classes (1) servants, and (2) everyone else; but he calls all non-servants "agents", not, as in the Restatement "independent contractors". He says at 33: "In this book . . . I propose to separate the treatment of vicarious liability for servants from the treatment of vicarious liability for other persons, and despite the criticism of this terminology already noted, I propose to use the terms 'principal' and 'agent' to describe parties other than masters and servants to whose relationship the law attaches vicarious liability."
  85. ^ See the references in Bowstead & Reynolds and 2 Chitty on Contracts in the preceding footnote.
  86. ^ Agency 16.
  87. ^ Kerr Agency 16.
  88. ^ 1966 (2) SA 428 (A).
  89. ^ Para 18.
  90. ^ See Outline of the Law of Agency (1998), with its commentary on important English cases.
  91. ^ In Niselow v Liberty Life Association of Africa Ltd 1998 4 SA 163 (SCA) at 165 E/F—G/H Streicher JA, with whom the other members of the court concurred, said, "An independent contractor undertakes the performance of certain specified work or the production of a certain specified result. An employee at common law, on the other hand, undertakes to render personal services to an employer. In the former case it is the product or the result of the labour which is the object of the contract and in the latter case the labour as such is the object (see Smit v Workmen 'a Compensation Commissioner 1979 1 SA 5 1(A) at 61B. Put differently, 'an employee is a person who makes over his or her capacity to produce to another; an independent contractor, by contrast, is a person whose commitment is to the production of a given result by his or her labour'" (per Brassey, "The Nature of Employment" (1990) 11 ILJ 889 at 899).
  92. ^ On the problems encountered see Professor M Brassey, "The Nature of Employment", (1990) 11 IL.! 889 at 890-891. There are indications that developments in this area of the law of delict are under consideration: see Professor JR Midgley, "Mudbaths and Malpractice", Obiter 1987, 117 and the same learned author's note on "Mandate, Agency and Vicarious Liability: Conflicting Principles", (1991) 108 SAJJ 419.
  93. ^ It may be noted in passing that Professors De Wet and Van Wyk (386-389) and Professor Van Jaarsveld (Handeisreg, 212) use the Afrikaans word "lashebber" to mean mandatary whereas Adv Van der Merwe and the Hon Mr Justice Olivier (510, fn 77) give it (lashebber) as the translation of "independent contractor", and Professors Neethling, Potgieter and Visser (The Law of Delict 339) refer to "The contract of mandate (locatio conductio opens)." This is confusing. From Roman times to the present, mandate and locatio conductio opens have differed appreciably from each other. See also below ch 3. The usage of the former (Professors Dc Wet and Van Wyk and Professor Van Jaarsveld) is to be preferred as one should follow writers on contract rather than those on delict when one determines the classification of contracts.
  94. ^ See Kerr Agency 14-16 and chapter 3.
  95. ^ South African Property Practice and the Law (1987) at 933.
  96. ^ See Voet 3.3.7.
  97. ^ Faure v Louw 17.
  98. ^ Nel v SA Railways & Harbours 1924 AD 30 at 36.
  99. ^ Mineworkers' Union v Cooks 1959 (1) SA 709 (W).
  100. ^ De Wet & Macintosh Agency 143-144.
  101. ^ The practical value of this distinction has been questioned, since the scope of an agent's authority depends entirely on the terms or limits of the principal's authorisation. See Gibson Mercantile and Company Law 202.
  102. ^ Arendse v Resident Magistrate's Clerk, Cape Town 1912 CPD 272 at 278.
  103. ^ Voet 3.3.7.
  104. ^ Pothier Mandat § 144.
  105. ^ Faure v Louw 17.
  106. ^ Measrock v Liquidator, New Scotland Land Co Ltd 1922 AD 237 at 240.
  107. ^ Voet 17.1.4.
  108. ^ Benoni Produce & Coal Co Ltd v Gundelfinger 1918 TPD 453 at 458-9.
  109. ^ Jacobs, Levitatz & Braude v Kroonstad Roiler Mills 1921 OPD 38 at 43.
  110. ^ See generally De Villiers & Macintosh Agency 224-40.
  111. ^ Gibson Mercantile and Company Law 213-14.
  112. ^ See also Glass v AG Hendrie & Co (Pvt) Ltd 1957 (1) PH A6 (SR).
  113. ^ Chiapphi & Co v Jaffray's Trustee (1828-1849) 2 Menz 206 at 211.
  114. ^ Queen v Plockey (1888) 5 HCG 368 at 372.
  115. ^ Barclays Western Bank Ltd v Fourie 1979 (4) SA 157 (C) 162.
  116. ^ De Villiers & Macintosh Agency 219-23.
  117. ^ Gibson Mercantile and Company Law 214.
  118. ^ Chiapphi & Co v Jaifray's Trustee 211.
  119. ^ Marcus v Stamper & Zoutendijk 1910 AD 58 at 88.
  120. ^ Gibson Mercantile and Company Law 215.
  121. ^ The del credere agent is a type of factor.
  122. ^ Dely & De Kock v Civil Commissioner 1906 TS 94 at 96.
  123. ^ Marcus v Stamper & Zoutendijk 81, 88.
  124. ^ R v Le Roux 1959 (1) SA 808 (T) 809.
  125. ^ De Villiers & Macintosh Agency 185-219.
  126. ^ Gibson Mercantile and Company Law 211-213.
  127. ^ Kerr Agency 89-91.
  128. ^ Gluckman v Landau & Co 1944 TPD 261; Brayshaw v Schoeman 1960 (1) SA 625 (A); Estate Agency Affairs Act 112 of 1976; De Villiers & Macintosh Agency 240-250; Gibson Mercantile and Company Law 215-219.
  129. ^ Voet 3.3.9, 17; De Villiers v McIntyre NO 1921 AD 425 at 439, 450; Kayser & De Beer v Estate Liebenberg 1926 AD 91 at 96, 98; Eksteen v Van Schalkwyk 1991 (2) SA 39 (T); Attorneys Act 53 of 1979, as amended; De Villiers & Macintosh Agency 158.
  130. ^ Deeds Registries Act 47 of 1937, ss 87, 102.
  131. ^ Deeds Registries Act 47 of 1937, ss 15, 102.
  132. ^ Voet 3.1.1; Van der Linden 3.2.4; Pothier Louage § 10; Findlay v Knight 1935 AD 58 at 71; Klopper v Van Rensburg 1920 EDL 239; Admission of Advocates Act 74 of 1964; De Villiers & Macintosh Agency 158-159.
  133. ^ Grotius 1.4.5.
  134. ^ In modern law, the executor, not the heir, represents the deceased estate. The estate is an aggregate of assets and liabilities without legal personality. The executor is neither the agent of the estate nor, indeed, the agent of the heir. See generally the Administration of Estates Act 66 of 1965; Wille's Principles chap 25; Corbett et al Succession 6-10 and the authorities cited there.
  135. ^ Trust Property Control Act 57 of 1988. See generally Honoré & Cameron Trusts 105-115.
  136. ^ Insolvency Act 24 of 1936, ss 69-121. See generally De la Rey Mars Insolvency 244-246.
  137. ^ Trust Property Control Act 57 of 1988.
  138. ^ De Villiers v McIntyre NO 449.
  139. ^ Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 189; Kahn Contract and Mercantile Law I 850; Kerr Agency 52.
  140. ^ Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 189; Kahn Contract and Mercantile Law I 848-849.
  141. ^ Maasdorp v The Mayor of Graaff-Reinet 1915 CPD 636 at 639.
  142. ^ Maasdorp v The Mayor of Graaff-Reinet; Caledon Trust and Fire Assurance Co Ltd v Magistrate of Riversdale 1937 CPD 349; Ex parte Bullard 1937 TPD 297; Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 191.
  143. ^ Uniform Rule of Court 7.
  144. ^ Deeds Registries Act 47 of 1937, ss 20 and 50, reg 65.
  145. ^ Alienation of Land Act 68 of 1981, s 2(1).
  146. ^ Companies Act 61 of 1973, s 69(1) (a); Myflor Investments (Ply) Ltd v Everett NO 2001 (2) SA 1083 (C) 1095-1096.
  147. ^ Deeds Registries Act 47 of 1937, s 95.
  148. ^ The former requirement under the Stamp Duties Act 77 of 1968—that powers of attorney were subject to stamp duty of R1—was abolished by s 41(1) of the Taxation Laws Amendment Act 32 of 1999, with effect from 1 April 1999.
  149. ^ Deeds Registry Act 47 of 1937, s 3(1)(u).
  150. ^ See, for example, Strachan v Blackbeard & Son 1910 AD 282 at 290; Dicks v SA Fire & General Insurance Co Ltd 1963 (4) SA 501 (N).
  151. ^ Dicks v SA Mutual Fire & General Insurance Co Ltd 505; Inter-Continental Financing and Leasing Corporation (Pty) Ltd v Stands 56 and 57 Industria Ltd 1979 (3) SA 740 (W) at 747-748; Glofinco v ABSA Bank Ltd (t/a United Bank) 2001 (2) SA 1048 (W) 1058; Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 192.
  152. ^ AA Smith v Ismail Hoosen (1905) 26 NLR 404; Haine v Pattrick 1917 TPD 110; Kahn v Leslie & Son 1928 EDL 416; Goldblatt's Wholesale (P) Ltd v Damalis 1953 (3) SA 730 (O); Ellanco International Trading v SA Botswana Haullers (Pty) Ltd 1992 (2) SA 299 (W).
  153. ^ See Wanda (De Wet) 'Agency' L4WSA 2 ed vol 1 §192 and the authorities referred to there. See also the comments of Lewis J in Glofinco v ABSA Bank 1059, but note that, on appeal, at 2002 (6) SA 470 (SCA), the court dealt with the matter on the basis of estoppel.
  154. ^ Bester (1972) 89 SALJ 49 at 50.
  155. ^ De Villiers & Macintosh Agency 3-4; Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 188.
  156. ^ De Villiers & Macintosh Agency 3-4; Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 188.
  157. ^ See Monzali v Smith 1929 AD 382; Haddad v Livestock Products Central Co-op Ltd 1961(2) SA 362 (W) 367; Poort Sugar Planters (Ply) Ltd v Minister of Lands 1963 (3) SA 352 (A) 364; Service Motor Supplies (1956) (Pty) Ltd v Hyper Investments (Pty) Ltd 1961 (4) SA 842 (A) 849; Johaadien v Stanley Porter (Paarl) (Ply) Ltd 1970 (1) SA 394 (A) 402; Van Rooyen v Minister van Openbare Werke en Gemeenskapbou 1978 (2) SA 835 (A) 848-849; Beyleveld NO v Southern Life Association Ltd 1987 (4) SA 238 (C); African Life Assurance Co Ltd v NBS Bank Ltd 2001 (1) SA 432 (W) 451; NBS Bank Ltd v Cape Produce Co (Pty) Ltd 2002 (1) SA 397 (SCA) 411-412 paras 25-26; South African Eagle Insurance Co Ltd v NBS Bank Ltd 2002 (1) SA 560 (SCA) 575 paras 27-39; Glofinco v ABSA Bank Ltd (t/a United Bank) 2001 (2) SA 1048 (W) 1060-1067, 2002 (6) SA 470 (SCA) 480-483 paras 12-18. See Concor Holdings (Pty) Ltd t/a Concor Technicrete v Potgieter 2004 (6) SA 491 (SCA) at 494-495 paras 7-9 dealing with estoppel by conduct. See generally Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 210-212; Rabie (Daniels) "Estoppel" LAWSA 2 ed vol 9 § 449-473.
  158. ^ See Faure v Louw; Maclear School Board v Roberts 1911 EDL 205.
  159. ^ See Legg & Co v Premier Tobacco Co 1926 AD 132; and generally, Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 200-209; De Villiers de & Macintosh Agency chap 6; SR van Jaarsveld Die Leerstuk van Ratifikasie in die Suid-Afrikaanse Verteenwoordigingsreg (1974).
  160. ^ Reid v Warner 1907 TS 961 at 976; Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 207; De Villiers & Macintosh Agency 302; Van Jaarsveld 248. See Peak Lode Gold Mining Co Ltd v Union Government 1932 TPD 48.
  161. ^ Caterers Ltd v Bell & Anders 1915 AD 698; Keystone Trading Co v Die Verenigde &c. Mij 1926 TPD 218; Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 203.
  162. ^ Rand Trading Co Ltd v Lewkewitsch 1908 TS 108; McCullogh v Fernwood Estate Ltd 1920 AD 204 at 207, 217; Sentrale Kunsmis Korp (Edms) Bpk v NKP Kunsmisverspreiders (Edms) Bpk 1970 (3) SA 367 (A) 384, 390; Nordis Construction Co (P) Ltd v Theron, Burke & Isaac 1972 (2) SA 535 (D); Swart v Mbutzi Development (Edms) Bpk 1975 (1) SA 544 (T); Steenkamp NO v Provincial Tender Board, Eastern Cape 2006 (3) SA 151 (SCA) para 48; Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 203. As regards the position in the case of pre-incorporation contracts for companies to be formed, see s 21 of the Companies Act 71 of 2008. This section states that, provided its requirements are complied with, a contract entered into by someone purporting to act as agent for a company not yet formed can be ratified by the company once the company has been incorporated and is entitled to commence business. In the absence of ratification or rejection within three months after the company's incorporation, the contract will be regarded as having been ratified [s 21(5)]. The position with regard to close corporations is regulated by the Close Corporations Act 69 of 1984, s 53.
  163. ^ Keystone Trading Co v Die Verenigde &c. Mif; Theron v Leon 1928 TPD 719. See Broderick Motors Distributors (Pty) Ltd v Beyers 1968 (2) SA 1 (O) 5.
  164. ^ See, for example, Booysen v Cyrus (1909) 26 SC 74; Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 201.
  165. ^ Legg & Co v Premier Tobacco Co; Faure v Neethling & Co v Beyers (1895) 12 SC 438 at 443; Prince v Webster (1905) 22 SC 191; Dreyer v Sonop Bpk 1951(2) SA 392 (O); Wilmot Motors (Pty) Ltd v Tucker's Fresh Meat Supply Ltd 1969 (4) SA 474 (T).
  166. ^ Voet 17.1.5; Van Leeuwen CF 1.4.24.9; Belonje v African Electric Co (Pty) Ltd 1949 (1) SA 592 (EDL) 599; Strydom v Roodewal Management Committee 1958 (1) SA 272 (O) 273; Goodgold Jewellery (Pty) Ltd v Brevadau CC 1992 (4) SA 474 (W); Joubert & Van Zyl (Van Zyl) "Mandate and Negotiorum Gestio" LAWSA First Re-issue vol 17 § 9.
  167. ^ Wilson v Tatham (1898) 19 NLR 35; Kennedy v Loynes (1909) 26 SC 271 at 280; Steenkamp v Du Toit 1910 TS 171 at 177; Nel v SA Railways & Harbours 1924 AD 30; Turkstra v Kaplan 1953 (2) SA 300 (1); Niceffek (Edms) Bpk v Easivaal Motors (Edms) Bpk 1993 (2) SA 144 (O); Joubert & Van Zyl (Van Zyl) "Mandate and Negotiorum Gestlo" LAWSA First Re-issue vol 17 § 9.
  168. ^ Voet 17.1.5, 8; Turkstra v Kaplan 304; Denys v Elvy 1965 (2) SA 410 (SRA); Karaolias v Suleman t/a Jack's Garage 1975 (3) SA 873 (R) 875; Sachs v Watson 1993 (2) SA 88 (C); Joubert & Van Zyl (Van Zyl) "Mandate and Negotiorum Gestio" LAWSA First Re-issue vol 17 § 9.
  169. ^ Joubert & Van Zyl (Van Zyl) "Mandate and Negotiorum Gestio" LAWSA First Re-issue vol 17 § 8.
  170. ^ Voet 17.1.9; Bloom's Woollens (Ply) Ltd v Taylor 1962 (2) SA 532 (A) at 538; Inspan Motors (Pty) Ltd v Kock 1970 (4) SA 491 (N) 497; Nel v SA Railways & Harbours 36; Denys v Elvy; Blatt v Swakopmunder Bankverein GmbH 1929 SWA 90; Mazibuko v Singer 1979 (3) SA 258 (W).
  171. ^ Faure v Louw 18.
  172. ^ Joubert & Van Zyl (Van Zyl) "Mandate and Negotiorum Gestio" LAWSA First Re-issue vol 17 § 10; De Villiers & Macintosh Agency 326.
  173. ^ See, for example, Weber & Pretorius v Gavronsky Brothers 1920 AD 48 at 53; Bloom's Wooilens (Pty) Ltd v Taylor.
  174. ^ Sciama & Co v Table Bay Harbour Board (1900) 17 SC 121; Honey & Blanckenberg v Law 1966 (2) SA 43 (R); Mouton v Die Mynwerkersunie 1977 (1) SA 119 (A).
  175. ^ Page NO v Ross (1885) 2 BAC 52 at 55, 65; Transvaal Cold Storage Co Ltd v Palmer; S v Young 1977 (1) SA 602 (A) 609; Bellairs v Hodnell 1978 (1) SA 1109 (A) 1132; De Villiers & Macintosh Agency 337; Joubert & Van Zyl (Van Zyl) "Mandate and Negotiorum Gestio" LAWSA First Re-issue vol 17 § 11.
  176. ^ R v Mime & Erleigh (7) 1951 (1) SA 791 (A) 828; Joubert & Van Zyl (Van Zyl) "Mandate and Negotiorum Gestio" LAWSA First Re-issue vol 17 § 11.
  177. ^ Jones v East Rand Extension Gold Mining Co Ltd 1903 TH 325 at 335; Transvaal Cold Storage Co Ltd v Palmer 33; Hargreaves v Anderson 1915 AD 519; Robinson v Randfontein Gold Mining Co Ltd 1921 AD 168 at 171; Peacock v Marley 1934 AD 1 at 3; Durand v Louw 1935 TPD 47; Uni-Erections v Continental Engineering Co Ltd 1981 (1) SA 240 (W) 252-253.
  178. ^ Mallinson v Tanner 1947 (4) SA 681 (T).
  179. ^ Branch v Vic Diamond & Son (Pty) Ltd 1957 (1) SA 331 (SR).
  180. ^ Krige v Van Dijk's Executors 1918 AD 110; Hansa v Dinbro Trust (Pty) Ltd 1949 (2) SA 513 (T) 517; Liquidator African Commercial Co Ltd v Estate Bey 1955 (3) SA 565 (SR); Mailin v Scorgie 1950 (4) SA 344 (7) 347; Rellams (Pty) Ltd v James Brown & Hamer Ltd 1983 (1) SA 556 (N) at 560-561; Dale Street Congregational Church v Hendrikse 1992 (1) SA 133 (E); Joubert & Van Zyl (Van Zyl) "Mandate and Negotiorum Gestio" LAWSA First Re-issue vol 17 § 12. See Doyle v Fleet Motors PE (Pty) Ltd 1971(3) SA 760 (A).
  181. ^ Jacobsohn v Simon & Pienaar 1938 TPD 116; Hansa v Dinbro Trust (Pty) Ltd; Fisher v Levin 1971 (1) SA 250 (W) 255.
  182. ^ D 3.3.46; Voet 17.1.9; Van der Linden 1.15.14; Joubert & Van Zyl (Van Zyl) "Mandate and Negotiorum Gestio" LAWSA First Re-issue vol 17 § 13.
  183. ^ Transvaal Cold Storage Co Ltd v Palmer 33; Durand v Louw 1935 TPD 47; Mallinson v Tanner; Uni-Erections v Continental Engineering Co Ltd; De Villiers & Macintosh Agency 330-331.
  184. ^ R v Gush 1934 AD 260; A v Solomon 1953 (4) SA 518 (A); S v Kotze 1965 (1) SA 118 (A); S v Mphatswanyane 1980 (4) SA 253 (B).
  185. ^ Voet 41.2.8; Van der Keessel Th 478; Mills & Sons v Trustees of Benjamin Bros (1876) 6 Buch 115 at 122; Newmark Ltd v The Cereal Manufacturing Co Ltd 1921 CPD 52 at 61.
  186. ^ Voet 17.1.9; Van der Keessel Th 478; Blower v Van Noorden 897-898.
  187. ^ Gowan v Bowern 1924 AD 550 at 563; Eschini v Jones 1929 CPD 18 at 25; Sliom v Block 1936 TPD 105 at 109; Meyer NO v Bree Holdings (Pty) Ltd 1972 (3) SA 353 (F); Maw v Keith-Reid 1975 (4) SA 603 (C); De Villiers & Macintosh Agency 371.
  188. ^ Voet 17.1.11; Sammel v Jacobs & Co 1928 AD 353 at 368; Metro-Goldwyn-Mayer (SA) (Ply) Ltd v Herman 1938 TPD 226; Ese Financial Services (Pty) Ltd v Cramer 1973 (2) SA 805 (C) 812. See BK Tooling (Edms) Bpk v Scope Precision Engineermg (Edms) Bpk 1979 (1) SA 391 (A).
  189. ^ Mogg v Kemsley (1885-1888) 2 SAR 233.
  190. ^ Cohen v Rawbone (1904) 21 SC 169.
  191. ^ Gluckman v Landau & Co; Brayshaw v Schoeman 630; John H Pritchard & Associates (Pty) Ltd v Thorny Park Estates (Pty) Ltd 1967 (2) SA 511 (D) at 514-515; Roux v Schreuder 1968 (3) SA 616 (O) at 620-621; Van Zyl en Seuns (Edms) Bpk v Nel 1975 (3) SA 983 (N); Bundshuh v Finnegan 1975 (1) SA 376 (C) 377; Reyneke v Botha 1977 (3) SA 20 (T); Commercial Business Brokers v Hassen 1985 (3) SA 583 (N) 585; Watson v Fintrust Properties (Ply) Ltd 1987 (2) SA 739 (C).
  192. ^ Voet 17.1.11; Lumsden v Clark (1895) 2 OR 207; Levy v Philips 1915 AD 139 at 142; Consolidated Estates and Trusts Ltd v Turnbuil 1924 TPD 1 at 4; Gluckman v Landau & Co 267-268, 273; Ferndale Investments (Pty) Ltd v DICK Trust Ltd 1968 (1) SA 392 (A) 394. Generally, the right to commission, once accrued, is not affected by the subsequent fate of the contract: Baker v Afrikaanse Nasionale Afslaers en Agentskap Maatskappy (Edms) Bpk 1951 (3) SA 371 (A); Badenhorst v Van Rensburg 1985 (2) SA 321 (T) 330.
  193. ^ Gowan v Bowern 571; Koenig v Johnstone & Co Ltd 1935 AD 262 at 271; Ferndale Investments (Ply) Ltd v DICK Trust Ltd; De Villiers & Macintosh Agency 408. See generally Rivalland (1988) 51 THRHR 454-467.
  194. ^ See Nelson v Hirschhorn 1927 AD 190; John Wilkinson & Partners (Ply) Ltd v Berea Nursing Home (Ply) Ltd (in Voluntary Liquidation) 1966 (1) SA 791 (D) at 796; De Jongh v Owen Wiggens Trust Maatskappy Bpk 1977 (2) PH A43 (A); De Villiers & Macintosh Agency 395.
  195. ^ Rand Rietfontein Estates v Cohn 1937 AD 317; Barnard & Party Ltd v Strydom 1946 AD 931.
  196. ^ See De Villiers & Macintosh Agency 417-423.
  197. ^ Hargreaves v Anderson.
  198. ^ Levin v Levy 1917 TPD 702; Buffet v Lurie Bros 1923 CPD 473; De Villiers & Macintosh Agency 419.
  199. ^ Tennant QQ Home v Sutherland (1828-1849) 1 Menz 412; Steer & Co v Rowland (1897) 14 SC 358 at 360; Barnabas Plein & Co v Sol Jacobson & Son 1928 AD 25 at 30; Verenigde Adverteerders (Edms) Bpk v Tanner 1947 (2) SA 1128 (1); KBK Investments (Pty) Ltd v Investland Cily and Industrial (Ply) Ltd 1975 (2) PH A83 (T); Hiils v Taxing Master 1975 (1) SA 856 (D) 864.
  200. ^ Barnabas Plein & Co v Sol Jacobson & Son; De Villiers & Macintosh Agency 362; Joubert & Van Zyl (Van Zyl) "Mandate and Negotiorum Gestio" LAWSA First Re-issue vol 17 § 15. See also Press v Jotwall Investments (Pty) Ltd 1981 (1) SA 261 (W).
  201. ^ See, for example, Hersov & Co v Spitz 1927 TPD 938 at 941; Howarth v Lion Steel Construction Co (Pty) Ltd 1960 (3) SA 163 (FC). See Inkin v Borehole Drillers 1949 (2) SA 366 (A) at 372.
  202. ^ Auerbach v Sunbeam Neon Light Co 1938 CPD 471; Flook v Provident Assurance Corporation of Africa Ltd 1958 (2) SA PH A49 (SR).
  203. ^ Grotius 3.12.9; Voet 17.1.11; Blesbok Eiendomsagtenskap v Cantamessa 1991 (2) SA 712 (T); Joube & Van Zyl (Van Zyl) "Mandate and Negotiorum Gestio" LAWSA First Re-issue vol 17 § 14.
  204. ^ Voet 17.1.10; Commissioner of Taxes v William Dunn & Co Ltd 1918 AD 607 at 615.
  205. ^ Voet 17.1.13; Van Leeuwen CF 1.4.24.12; Blumenthal v Bond 1916 AD 29 at 37; Weber & Pretorius v Gavronsky Bros 51; De Villiers v The Beaufort West Municipality 1924 CPD 501 at 504. See Woods v East London Municipality 1974 (4) SA 541 (E) 549.
  206. ^ Blower v Van Noorden 899; SWA Amalgameerde Afslaers (Edms) Bpk v Louw 1956 (1) SA 346 (A); Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 176.
  207. ^ Voet 17.1.9; Schorer, Note 340; Van der Keessel Th 572.
  208. ^ Voet 17.1.13; Schorer, Note 340; Van der Keessel Th 572.
  209. ^ Blower v Van Noorden 899; Howard's Debt Collecting Agency v Haarhoff 1925 TPD 272 at 277; SWA Amalgameerde Afslaers (Edms) Bpk v Louw; Nordis Construction Co (Pty) Ltd v Theron, Burke & Isaac; Terblanche v Nothnagel 1975 (4) SA 405 (C).
  210. ^ Chappell v Gohl 1928 CPD 47; Randbank Bpk v Santam Versekeringsmaatskappy Bpk 1965 (2) SA 456 (W) 458, 1965 (4) SA 363 (A); Price NO v Allied-JBS Building Society 1979 (2) SA 262 (F) 268; De Villiers & Macintosh Agency 438.
  211. ^ Du Preez v Laird 1927 AD 21 at 27; Gompels v Skodawerke of Prague 1942 TPD 167 at 171; Clifford Harris (Rhodesia) Ltd v Todd NO 1955 (3) SA 302 (SR) 303.
  212. ^ Natal Bank Ltd v Parsons 1906 TH 102 at 115; Reid v Warner 974-975; Trahair v Webb & Co 1924 WLD 227 at 234; Baranov Estates v HV Price (1926) 47 NLR 347 at 353; Kahn v Leslie & Son; Weedon v Bawa 1959 (4) SA 735 (D) 742; Greyling v WL Ochse Livestock (Pty) Ltd 1967 (2) SA 601 (E). See Guarantee Investment Corporation Ltd v Shaw 1953 (4) SA 479 (SR); Broderick Motors Distributors (Pty) Ltd v Beyers 5. See also Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 209.
  213. ^ Reid v Warner 975.
  214. ^ Pothier Obligations § 79; Mine Workers Union v Broderick 1948 (4) SA 959 (A) 979; De Villiers & Macintosh Agency 347.
  215. ^ Town Council of Barberton v Ocean Accident & Guarantee Corporation Ltd 1945 TPD 306; Bird v Sumerville 1961 (3) SA 194 (A) 202; Connock's (SA) Motors Co Ltd v Sentraal Westelike Kooperatiewe Maatskappy Bpk 1964 (2) SA 47 (T) 53; Randbank Bpk v Santam Versekermgsmaatskappy Bpk 1965 (4) SA 363 (A) 368; Oatorian Properties (Pty) Ltd v Maroun 1973 (3) SA 779 (A) 787; Allen v Sixteen Stirling Investments (Pty) Ltd 1974 (4) SA 164 (D) 166; Rabinowitz & Another NNO v Ned-Equity Insurance Co Ltd 1980 (1) SA 403 (W) 407-408; Anderson Shipping (Pty) Ltd v Guardian Nations Insurance Co Ltd 1987 (3) SA 506 (A); Kerr (1993) 110 SALJ 199.
  216. ^ Elliot Bros (EL) (Pty) Ltd v Smith 1958 (3) SA 858 (E); Sun Couriers (Pty) Ltd v Kimberley Diamond Wholesalers 2001 (3) SA 110 (NC) 122 para 47. See Anderson Shipping (Pty) Ltd v Guardian National Insurance Co Ltd.
  217. ^ Symon v Brecker 1904 TS 745 at 747: Wessels & Co v Rudman 1911 CPD 667; Natal Trading & Milling Co Ltd v Ingils 1925 TPD 724 at 727; Wireless Telegraph Co of SA Ltd v Dougall & Munro Ltd 1927 CPD 380 at 383; Cullinan v Noordkaaplandse Aartappelkernmoerkwekers Kooperasie Bpk 1972 (1) SA 761 (A) 768-769. The doctrine of the undisclosed principal is contrary to the basic principles of contract and agency, and has been criticized. See, for example, De Wet & Van Wyk Kontraktereg 123-128; Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 221-234; Joubert & Van Zyl (Van Zyl) "Mandate and Negotiorum Gestio" LAWSA First Re-issue; Van der Horst Die Leerstuk van die "Undisclosed Principal" (1971). It originated in English law and was introduced into South African law in Lippert & Co v Desbats (1869) 2 Buch 189 and in O'Leary v Harbord (1888) 5 HCG 1, cases which have consistently been followed ever since. See Van Der Horst at 66. In Cullinan v Noordkaaplandse Aartappelkemmoerkwekers Koöperasie Bpk, the Appellate Division authoritatively decided that, despite its anomalous character, the doctrine has been adopted into the South African legal system. See also Karstein v Moribe 1982 (2) SA 282 (1) at 292; Sasfin Bank Ltd v Soho Unit 14 CC t/a Aventura Eiland 2006 (4) SA 513 (T).
  218. ^ Lipped & Co v Desbats; O'Leary v Harbord; Snyman v Brecker; Cook v Aldred 1909 TS 150; Avis Highveld Supply Stores 1925 AD 410; Cullinan v Noordkaaplandse Aartappelkernmoerkwekers Kooperasie Bpk. The right of the principal to intervene is excluded on the basis of equity, where such intervention could result in prejudice to the third party unforeseen by the third party at the time of entering into the contract: Karstein v Moribe 299. The agent cannot contract on behalf of more than one undisclosed principal (Cullinan v Noordkaaplandse Aartappelkernmoerkwekers Kooperasie Bpk) unless, perhaps, they are to be jointly liable under the contract: see Karstein v Moribe 293.
  219. ^ O'Leary v Harbord; Natal Trading & Milling Co v Inglis; Chappell v Gohl 1928 CPD 47; Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 232.
  220. ^ Natal Trading & Milling Co v Inglis; Van Staden v Prinsloo 1947 (4) SA 842 (T). See Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 232.
  221. ^ Lazarus v Ndimangele 1913 CPD 732; Gadlela v Mountjoy 1921 EDL 151; Scholtz v Sieff 1928 OPD 131 at 132; Karstein v Moribe 293.
  222. ^ Marais v Perks 1963 (4) SA 802 (F); JPS Nominees (Pty) Ltd v Kruger 1976 (1) SA 89 (W) at 92-93; Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 186, 224; Hunt 1963 Annual Survey 171-172. See Allen v Du Preez 1950 (1) SA 410 (W); Edelson v Glenfields Estates (Pty) Ltd 1955 (2) SA 527 (F).
  223. ^ Davies v Donald 1923 CPD 295; Mangold Bros Ltd v Minnaar & Minnaar 1936 TPD 48 at 54; Plaaslike Boeredienste (Edms) Bpk v Chemfos Bpk 1986 (1) SA 819 (A); Extel Industrial (Ply) Ltd v Crown Mills (Pty) Ltd 1999 (2) SA 719 (SCA). The basis of the principal's right to resile is not fraud but the wrongful and immoral act of the third party (see Plaaslike Boeredienste (Edms) Bpk v Chemfos Bpk). See Van der Merwe & Van Huysteen (1987) 50 THRHR 78.
  224. ^ The liability of a principal for the delicts of the agent is addressed in the section on strict liability in the entry on the law of delict in South Africa.
  225. ^ Blower v Van Noorden 899; Commaillie v Jamaloodien 1917 CPD 656; Wood v Visser 1929 CPD 55; Howard's Debt Collecting Agency v Haarhoff; Marais v Perks 806; Wanda (De Wet) "Agency" L4WSA 2 ed vol 1 § 233.
  226. ^ Logan v Read & Ash (1892-1893) 9 SC 514.
  227. ^ Blower v Van Noorden 898; Howard's Debt Collecting Agency v Haarhoff 277; Overseas Trust Corporation Ltd v Godfrey 1940 CPD 177 at 183; Marais v Perks 806. In such a case, of course, the "agent," in undertaking the liability, acts as principal. See Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 214; Gardner v Richardt 1974 (3) SA 768 (C).
  228. ^ Blower v Van Noorden 898; Howard's Debt Collecting Agency v Haarhoff 277; Overseas Trust Corporation Ltd v Godfrey 183; Marais v Perks 806; Gardner v Richardt; Clark v Van Rensburg 1964 (4) SA 153 (O) 159. See also the cases dealing with the undisclosed principal.
  229. ^ Langham Court (Ply) Ltd v Mavromaty 1954 (3) SA 742 (T).
  230. ^ Trustees of Beyers v Piton & Beyers (1883-1884) 2 SC 373; Hamad v African Mutual Trust 1930 AD 333.
  231. ^ See, for example, L & SA Exploration Co v Murphy (1886-1887) 4 HCG 322 at 335; Wolhuter v Smith (1895-1898) 8 HCG 109; Gompels v Skodawerke of Prague 170; Langham Court (Pty) Ltd v Mavromaly 745; argument of counsel in Hamed v African Mutual Trust 334; Van Eeden v Sasol Pensloenfonds 1972 (2) SA 167 (O) 180; De Villiers & Macintosh Agency 574.
  232. ^ Nordis Construction Co (Pty) Ltd v Theron, Burke & Isaac 544; Terblanche v Nothnagel; Indrieri v Du Preez 1989 (2) SA 721 (C); Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 215. See Hutchinson v Hylton Holdings 1993 (2) SA 405 (T).
  233. ^ Wanda (De Wet) "Agency" LAWSA 2 ad vol 1 § 215; Indrieri v Du Preez 728.
  234. ^ Wille's Principles 1001.
  235. ^ Wanda (De Wet) "Agency" LAWSA 2 ad vol 1 § 216.
  236. ^ Blower v Van Noorden 901; Peak Lode Gold Mining Co Ltd v Union Government; Know v Davis 1933 EDL 109; Calder-Potts v McMillan 1956 (3) SA 360 (F). See Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 218: "It is submitted that it is misleading to speak of an 'implied warranty' when the 'warranty' is not based on tacit consensus but on a misrepresentation and that in the absence of consensus the real basis of liability can only be misrepresentation." Such criticism led Miller AJA, as he then was, to state, in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A), at 409, that "whether the final word on the subject has been spoken by Innes CJ in Blower v Van Noorden might be open to argument." See also Ericsen v Germie Motors (Edms) Bpk 1986 (4) SA 67 (A) at 87-88, where the question was again left undecided.
  237. ^ Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 196-199. See The Firs Investment Ltd v Levy Bros Estates (Ply) Ltd 886; Consolidated Frame Cotton Corporation Ltd v Sithole 1985 (2) SA 18 (N) 22; Eileen Louvet Real Estate (Ply) Ltd v AFC Property Development Co (Pty) Ltd 1989 (3) SA 26 (A) 30-31. See also Joel Melamed and Hurwilz v Cleveland Estates (Pty) Ltd 1984 (3) SA 155 (A) 171.
  238. ^ Voet 17.1.17. See generally Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 198; Joubert & Van Zyl (Van Zyl) "Mandate and Negotiorum Gestio" LAWSA First Re-issue vol 17 §16.
  239. ^ Joubert & Van Zyl (Van Zyl) "Mandate and Negotiorum Gestio" LAWSA First Re-issue vol 17 § 16 and the authorities cited there.
  240. ^ Joubert & Van Zyl (Van Zyl) "Mandate and Negotiorum Gestio" LAWSA First Re-issue vol 17 § 16; Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 199 n4; De Villiers & Macintosh Agency 615-634. See also The Firs Investment Ltd v Levy Bros Estates (Ply) Ltd 886; Consolidated Frame Cotton Corporation Ltd v Sithole 22; Eileen Louvet Real Estate (Ply) Ltd v AFC Property Development Co (Pty) Ltd 30-31. See also Joel Melamed and Hurwilz v Cleveland Estates (Pty) Ltd 171.
  241. ^ Joubert & Van Zyl (Van Zyl) "Mandate and Negotiorum Gestio" LAWSA First Re-issue vol 17 § 16; Eileen Louvet Real Estate (Pty) Ltd v AFC Property Development Co (Pty) Ltd at 31-32; Tony Morgan Estates v Pinto 1982 (4) SA 171 (W). See also Magua v Kahn 1981 (1) SA 1239 at 1242-1243.
  242. ^ Van Leeuwen RHRHR 4.26.11; The Castle Wine and Brandy Co Ltd v Morris 1931 WLD 67. See AN & G Coal Mining Co (Pty) Ltd v Stuart 1981 (3) SA 521 (W).
  243. ^ See National Board (Pretoria) (Pty) Ltd v Estate Swanepoel 1975 (3) SA 16 (A).
  244. ^ Voet 17.1.15; Van Bynkershoek Obs Turn vol 1 no 979; Ex parte Administrator of Estate Wessels 1941 OPD 264; Ex parte Kelly 1943 OPD 76. See Tomp & Playfair v Currie 1969 (2) SA 704 (RA); Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 1 97n1.
  245. ^ Pheasant v Warne 1922 AD 481; Tucker's Fresh Meat Supply (Ply) Ltd v Echakowitz 1958 (1) SA 505 (A).
  246. ^ Klein NO v South African Transport Services 1992 (3) SA 509 (W) 514; Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 197.
  247. ^ Mort NO v Henry Shields-Chiat 2001 (1) SA 464 (C). See Kerr Agency 255.
  248. ^ Ward v Barrett 1962 (4) SA 732 (N). The agent's authority does not lapse on the agent's insolvency, because any obligations incurred under a contract concluded by an agent are the principal's obligations. See Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 197.
  249. ^ Voet 17.1.17; Eileen Louvet Real Estate (Pty) Ltd v AFC Property Development Co (Ply) Ltd 30; The Firs Investment Ltd v Levy Bros Estates (Pty) Ltd 886; Consolidated Frame Cotton Corporation Ltd v Sithole 22; Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 198-199; De Villiers & Macintosh Agency 614. But see Magua v Kahn, where it was held that the authority cannot be revoked if to do so would expose the agent to loss or suffering. "With respect," writes Graham Bradfield, "the real issue in such a case is whether the mandate may be revoked without incurring liability in damages for breach of contract" (Wille's Principles 1002).
  250. ^ Bulawayo Market Co v Bulawayo Club (1904) CTR 370; Wilson v Blanck 1909 TS 344 at 350; Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 198.
  251. ^ The Firs Investment Ltd v Levy Bros Estates (Pty) Ltd 886. See Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 199; De Villiers & Macintosh Agency 616-617 n29; Kerr Agency 243-251; Joubert (1969) 32 THRHR 263.
  252. ^ Natal Bank Ltd v Natorp & Registrar of Deeds 1908 TS 1016; Hunt, Leuchars & Hepburn Ltd: In re Jeansson (1911) 32 NLR 493; Glover v Bothma 1948 (1) SA 611 (W) at 625-626. See also Van Niekerk v Van Noorden (1900) 17 SC 63; Botha v Schultz 1966 (2) SA 615 (O). See Ward v Barrett; Kotsopolous v Bilardi 1970 (2) SA 391 (C); Consolidated Frame Cotton Corporation Ltd v Sithole 22-23.
  253. ^ Natal Bank v Natorp & Registrar of Deeds.
  254. ^ Voet 17.1.17; Hippo Quarries (Tvl) (Pty) Ltd v Eardley 1992 (1) SA 867 (A); Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 199.
  255. ^ Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 199.
  256. ^ Wille's Principles 1003.
  257. ^ See Wanda (De Wet) "Agency" LAWSA 2 ed vol 1 § 199.
  258. ^ Ward v Barrett 737; The Firs Investment Ltd v Levy Bros Estates (Pty) Ltd 886.

December 11, 2023
south, african, agency, this, article, long, read, navigate, comfortably, please, consider, splitting, content, into, articles, condensing, adding, subheadings, please, discuss, this, issue, article, talk, page, 2020, agency, south, africa, regulates, performa. This article may be too long to read and navigate comfortably Please consider splitting content into sub articles condensing it or adding subheadings Please discuss this issue on the article s talk page May 2020 The law of agency in South Africa regulates the performance of a juristic act on behalf or in the name of one person the principal by another the agent who is authorised by the principal to act with the result that a legal tie vinculum juris arises between the principal and a third party which creates alters or discharges legal relations between the principal and a third party 1 2 3 4 5 6 7 Kerr states that in legal contexts the word agent is most commonly used of a person whose activities are concerned with the formation variation or termination of contractual obligations and that agency has a corresponding meaning It is the agent s position as the principal s authorised representative in affecting the principal s legal relations with third parties that is the essence of agency The term agency is sometimes used more broadly to describe both the position of an agent as representative of a principal to perform juristic acts that affect the principal s legal relations with third parties and also a relationship of mandate in which an agent is bound as mandatary to carry out some task for the principal as mandator 8 In general the aim of the appointment of an agent is the performance of a service for the principal but many besides agents perform services for another One must therefore consider other characteristics when identifying the nature of agency It is the substance of the relationship that is important The essence of agency is that the agent is the principal s authorised representative in effecting the principal s legal relationships with third parties Contents 1 Agency representation and mandate 1 1 Representation 1 2 Mandate 2 Agency and other contracts 3 Agency powers 4 Scope of agency 5 Agents and other fiduciaries 6 Agent s authority 6 1 Actual authority 6 1 1 Agency by appointment 6 1 1 1 Express authority 6 1 1 2 Tacit authority 6 1 2 Involuntary agency 6 2 Agency by estoppel 6 3 Agency by ratification 7 Legal effect of agency 7 1 Principal agent relationship 7 1 1 Agent s obligations 7 1 1 1 Personal performance 7 1 1 2 Obedience to principal s instructions 7 1 1 3 Care skill and diligence 7 1 1 4 Good faith 7 1 1 5 Account by agent 7 1 1 6 Delivery of proceeds of mandate 7 1 2 Principal s obligations 7 1 2 1 Agent s remuneration 7 1 2 1 1 Amount of remuneration 7 1 2 2 Agent s expenses 7 1 2 3 Indemnity 8 Relations between principal and third persons 8 1 Agent acts within authority 8 2 Agent exceeds authority 8 3 Agent conceals capacity undisclosed principal 8 4 Agent acts corruptly 9 Relations between agent and third parties 9 1 Agent 9 2 Agent exceeds authority 10 Termination of agent s authority 10 1 Irrevocable authority 11 See also 12 References 12 1 Books 12 2 Cases 13 NotesAgency representation and mandate editIt is important to distinguish between the elements of representation and mandate Representation edit Hosten refers to agency and representation interchangeably The latter however refers to instances of purely juristic representation Representation entails one person s performing a juristic act on behalf of another 9 10 The agent s ability as representative to affect the principal s legal relations is primarily derived from and its extent determined by the agent s authority to do so An act of representation held Corbett JAA in Joel Melamed and Hurwitz v Cleveland Estates Pty Ltd Joel Melamed and Hurwitz v Vorner Investments Pty Ltd 11 needs to be authorized by the principal Such authorization is usually contained in a contract The authorisation of the representative is a distinct unilateral act It is sometimes closely associated with an agreement between the parties but may also arise by operation of law 12 13 Although some representatives such as public officials company directors guardians and curators are often referred to loosely as agents the current tendency is to reserve the term agent to denote a representative who is bound by contract with a principal to carry out a mandate and also authorised to create alter or discharge legal relations for the principal 14 15 16 This modern notion of an agent as representative that is as someone who enters into contracts for a principal on which the agent usually cannot be held personally liable was not generally recognised in Roman law 17 18 The idea eventually came to form part of Roman Dutch law 19 20 21 22 although it was not developed to the same extent as the modern principles of commercial agency in England and America As a result South African courts have been greatly influenced by Anglo American law in developing the South African law of agency 23 24 25 26 Mandate edit Mandate mandatum Afr lasgewing is a contract in which one person the mandatary undertakes to perform some lawful task for another the mandator 27 28 29 30 31 32 33 34 35 In Roman Dutch law the contract was said to be essentially gratuitous 36 If the parties agreed on a payment for the services rendered the contract was one of letting and hiring of work or services locatio conductio operis 37 or operarum respectively 38 39 40 41 42 43 It was accepted in practice however that the mandator might offer a reward or honorarium not in payment but in gratitude for the mandatary s services 44 45 46 There is no objection in modern law to the remuneration of the mandatary with the result that it is difficult to distinguish the contract of mandate from that of letting and hiring of work or services 47 48 49 In Roman law the mandatary was not the mandator s representative 50 Where the mandator concluded contracts with third parties in executing the mandate the mandatary did so in his own name and not on the mandator s behalf The rights and duties under such contract were the mandatary s alone While the mandator could indirectly acquire rights against the third party by means of cession he she could not do so directly 51 52 53 54 The position in modern law is different The mandate may well include a power to represent the mandator but it need not do so 55 For example a person wishing to sell a house will often instruct an estate agent merely to find a suitable purchaser with whom the seller might conclude the sale personally but may also authorise the estate agent to sell the property on the seller s behalf 56 Where the mandate involves or is coupled with a power or authority to represent the mandator the mandatary is an agent 57 58 59 60 The term agent is difficult to define however for it has a variety of meanings 61 62 Sometimes it is used to denote the representation where the emphasis falls on the juristic relationship established by the agent between the principal and third party At other times it is used to refer to the contractual relationship between the principal and agent the so called contract of agency that in reality is a species of mandate 63 64 Very often the term is used in a broad sense to embrace both the contract between the principal and agent and the concept of representation This usage while criticised 65 66 is almost inescapable because both mandate and representation are obviously fundamental elements of the field of law generally referred to as the law of agency 67 In modern commercial law the agent is simply and solely the representative of the principal on whose behalf the agent transacts with third parties Such transactions are the principal s transactions They inure to the principal s benefit or render the principal liable as the case may be without any benefit or liability attaching to the agent The agent acts merely as a conduit to bring about a legal relationship between the principal and the third party 68 Agency and other contracts editIn SA law of contract independent contractor normally used to mean conductor operis one who s obliged to produce certain finished work 69 Typical examples as cited by Kerr are a builder who is obliged to complete a house or a building a manufacturer who is obliged to build a ship a weaver who is obliged to make cloth from wool supplied to him and a person who is obliged to wash or mend clothes 70 Independent contract operates in similar way to that of the mandatory Conductores operis share with mandataries amp employees an obligation to do the work they contract to do 71 72 The contracts of all three of these classes differ fundamentally from those of independent agents 73 IAs not obliged to do any work at all if they don t want to IA not subject to any control supervision of the locator he is his own master This is why according to Kerr description of IA as a locator operis as in Colonial Mutual Life Assurance Society Ltd v Macdonald 74 75 is likely to cause confusion 76 It is not clear from report in Smit v Workmen s Compensation Commissioner whether or not the appellant insurance agent was an IA or one who was obliged to make use of opportunities to be of service to his principal 77 If he were an independent agent he could not have been a conductor operis Since the court held that that is what he was it should be assumed that he was obliged to further his principal s interests 78 79 What Kerr finds puzzling about the decision is that the court did not discuss whether or not he was a mandatary If he had an obligation to further his principal s interests the category of mandatary would have been the more appropriate 80 The insurance agent in Colonial Mutual Life Assurance Society Ltd v Macdonald 81 was an independent agent 82 In two of the three opinions in the case however he was described as an independent contractor because the case was on delict and that is the term used in some delict cases especially in English cases or cases influenced by them 83 In English and American law the division between independent contractors on the one hand and those who are variously described as agents or employees or servants on the other hand is based on the needs of the law of delict in respect of vicarious liability 84 Writers on English law are aware of the handicaps inherent in such a proceeding 85 which is for Kerr an added reason for not adopting it in our law 86 In South African law the distinction between employees or servants and independent contractors is based on the distinction between locatio conductio operarum and locatio conductio operis faciendi These categories being contractual should be defined with the law of contract in mind 87 In the case of employment the employer is vicariously liable for the delictual acts of the employee committed during course of his employment In the case of an independent contractor the principal or locator is not delictually liable The case of Chartaprops Pty Ltd amp another v Silberman highly important illustrates this principle Mrs Silberman was injured in casu when she slipped and fell in a shopping mall owned by Chartaprops which had appointed a company Advanced Planning to do the cleaning of the mall A slippery substance was left undetected by the employees of Advanced Planning Silberman sustained an injury as a result and sued both companies Advanced Planning on the basis of the negligence of its employees in failing to detect and remove the substance which had been lying on floor for about thirty minutes There was evidence also that Chartaprops was in habit of checking on and inspecting Advanced Planning s activities But Chartaprops too had failed to detect the substance In court a quo both respondents were found to be liable jointly and severally They appealed and leave to do so was granted Nugent JA disagreed with the court a quo which he said had erred in holding Chartaprops liable vicariously for the negligence of Advanced Planning Liability according to Nugent could be found elsewhere but it could not be on the basis of vicarious liability Where liability arises vicariously it is because the defendant and the wrongdoer stand in a particular relationship to one another According to Nugent the rules which applied in this case did not involve the role of independent contractor the employer is not and ought not to be held responsible for the actions of an independent contractor The defendant might be responsible for its own omission its own failure to act or to perform its own legal duties taking reasonable steps as articulated in Kruger v Coetzee 88 Nugent applied the principle of non delegability based on English law There was a duty on Chartaprops as owner of the mall to ensure that its visitors were reasonably safe It could not shift this responsibility to the cleaning company According to Nugent therefore liability rested on Chartaprops as the owner of the premises A person who invites the public to frequent a shopping mall will be expected by members of the public to have ensured that the floors of the premises are reasonably safe and they will expect to look to that person if they are not 89 Chartaprops had failed in Nugent s view in its duty to the public to ensure that its premises were safe Nugent exonerated Advanced Planning on the grounds that it owed no such duty to the public any omission on its part was therefore not actionable This judgment although progressive is clearly wrong according to Richman Mqeke since it is based on non delegability The majority judgment written by Ponnan JA disagreed with Nugent s for the same reason The principal on his view is not liable for wrongs committed by an independent contractor or its employees Ponnan relied on a number of cases most important of these being Langley Fox Building Partnership v De Valence 1991 1 SA 1 A in which the Appellate Division held that the principal is not liable for the civil wrongs of an independent contractor and that the principal would only be liable if personally at fault Ponnan also referred to classic test in Kruger but he applied it differently a W ould a reasonable man have foreseen the risk of danger in consequence of the work he employed the contractor to perform If so b would a reasonable man have taken steps to guard against the danger If so c were such steps duly taken in the case in question According to Ponnan there was no justification for making an exception in the case under consideration in order to allow a person who is injured to recover from a principal in addition to the normal rights which an injured person should enjoy against the independent contractor Ponnan also pointed out that there was no justification in the fiction of the principle of non delegability for shifting the economic cost of the negligent acts of Advanced Planning which was primarily responsible for the damage to Chartaprops The principle of non delegability according to Ponnan had caused a great deal of misunderstanding Ponnan held that the position in Roman Dutch law as articulated in some of cases he named citation needed should not be changed He thus restated the long standing authority of the Roman Dutch position If the view of Nugent had been the majority view it would have changed current South African law 90 The most important proposition concerning contracts of employment therefore is not that there is vicarious liability in delict it is that the employee is obliged to do whatever work falls within the compass of the agreement 91 and that the employer is obliged to pay whatever remuneration has been agreed upon If the rules of the law of delict require that attention be paid to differing categories of persons it is for those rules to lay down what categories are necessary in delict 92 93 The choice in delict seems to Kerr to be between delimiting categories according to the requirements of that branch of the law and giving the categories so delimited new titles of their own and making use of established categories in the law of contract If the categories of the law of contract are adopted the limits of those categories should be adopted The more strictly the principle of retaining contractual descriptions of contractual categories is adhered to the more valuable will cases in either branch of the law be when a decision in the other branch of the law is under consideration and the person in question falls into a category which is relevant in both branches It is not only in case law that one has difficulty with the term independent contractor An example of a difficulty in statute law is to be found in the law relating to estate agents The term independent contractor does not normally mean an employee 94 but rule 3 15 of the Estate Agent s Code of Conduct speaks of an estate agent s being in the service of another estate agent as an independent contractor Item 3 of the Specification of Services said that a person rendering any of the aforesaid services in paras a i a ii or a iii of the definition of estate agent in the Act as an independent contractor shall be deemed to do so as an employee of an estate agent Delport suggests that the purpose of the Notice was to rectify the problem which arose as a result of the introduction of the expression independent contractor in section 26 of the Act 95 Kerr does not think that deeming all independent agents and mandataries if that is what is meant in this context by independent contractors to be employees either solves or is a suitable way to solve the problem Section 26 of the Act was intended to ensure that all those practising as estate agents had fidelity fund certificates It referred to an independent contractor rendering services to an estate agent Rendering services appears to Kerr to have been be used in the general sense it does not appear to mean that independent agents have contracts of locatio conductio operarum Agency powers editAn agent is empowered primarily to carry out some or all of the following acts most commonly conclude contracts for the principal and thereby acquire personal rights for the principal as against third parties and incur obligations on the part of the principal in respect of third parties receive performance of third parties obligations to the principal and thereby extinguish the obligations and in the case of receiving property acquire real rights for the principal perform the principal s obligations to third parties and thereby discharge the obligations and in the case of delivering property to third parties extinguish the principal s real rights Scope of agency editAgents are classified as special or general 96 97 98 99 100 101 A special agent is one engaged by a principal for a particular transaction or specific limited purpose 102 A general agent is one authorised to act for a principal in all transactions of a particular nature or in all matters concerning a particular business or in all transactions that the principal could perform personally 103 104 105 106 Agents and other fiduciaries editThe term agent is often applied indiscriminately to any person who performs some act on behalf of another and who in a loose sense represents that person Such agents are then classified according to the nature of the acts they perform However many of these agents are not in law agents because they lack the power to bind their principals which is the distinctive element of agency Instead they are merely fiduciaries The following persons act in a fiduciary capacity but not as agents sensu stricto Brokers facilitate communication between parties engaged in negotiations to conclude a contract The broker as such does not have the power to conclude the contract on behalf of either of the parties 107 108 109 110 111 112 Factors sell their principals goods the possession of which has been consigned to them The factor usually contracts in their own name with the buyer and thus incurs personal liability under the contract 113 114 115 116 117 Del credere agents sell their principals goods and undertake to indemnify their principals in the event of the purchaser breaching the contract This undertaking commonly entails guaranteeing payment of the purchase price 118 119 120 121 Auctioneers sell their principal s property by public auction 122 123 124 125 126 127 Estate agents negotiate the sale of immovable property The estate agent is generally engaged merely to find a suitable buyer not to conclude the sale on the principal s behalf An estate agent is not strictly speaking even a mandatary since he is not under any obligation to execute the task entrusted there is merely an incentive for the estate agent to do so in the form of an opportunity to earn a commission 128 Attorneys enforce defend or settle their clients rights or claims against adverse third parties either in or out of court 129 Notaries draft wills draw up and attest antenuptial contracts notarial bonds donations prospecting contracts and mining leases and other instruments for their clients 130 Conveyancers prepare deeds of transfer certificates of title and mortgage bonds for registration on their clients behalf 131 Advocates are authorised to conduct trial proceedings on their clients behalf 132 Guardians and curators manage the affairs of persons incompetent to do so themselves 133 Executors liquidate and distribute deceased persons estates 134 Administrators or testamentary trustees manage deceased persons property invest their funds and apply the income in accordance with the provisions of wills 135 Trustees and liquidators in insolvency liquidate and distribute insolvent persons estates 136 Trustees under inter vivos trust deeds administer assets and funds settled on them for the benefit of others 137 Trust companies and boards of executors administer deceased and insolvent persons estates raise loans and invest capital on behalf of principals and generally conduct agency work of all kinds including buying selling and letting of immovable property 138 Agent s authority editThe agent s authority to represent the principal constitutes the essence of commercial agency which may be formed in a number of ways The principal may authorise the agent by express or implied appointment Generally the acts of an agent without actual authority cannot bind the principal The principal may however be estopped from denying the agent s authority The principal may also ratify the agent s unauthorised acts Actual authority edit There is only one source of authority recognised in South African law actual factual authority Agency by appointment edit Express authority edit The principal may expressly appoint authority on the agent to perform juristic acts on the principal s behalf The appointment is a unilateral juristic act whereby authority is declared in clear direct and definite terms It indicates to third parties the principal s intention to be bound by the agent s acts performed within the scope of the authority appointed 139 Although it is frequently linked with or evidenced by a contract between the principal and agent the appointment is a distinct juristic act the authority of the agent is derived not from the contract but from the appointment it embodies 140 Generally no formalities are required for an agent s authorisation an oral appointment will suffice 141 Written appointment usually takes the form of a power of attorney A power of attorney is a legal instrument setting out the powers conferred on the agent and may be either special or general A power of attorney is legally required in only a few cases namely when required by some law or regulation or established practice 142 for example to appoint an attorney to prosecute an appeal in the High Court 143 or a conveyancer to pass transfer of a mortgage bond 144 or an agent to represent a principal in a contract for the alienation of land 145 Where a company concludes a contract that must be in writing the person signing as or for the company does not have to be appointed in writing for the transaction to be binding 146 Since the power of attorney readily and conveniently furnishes proof of an agent s authority banking and financial institutions and businesspersons generally usually require agents to exhibit powers of attorney before entering into transactions with them Although there is no general law prescribing formalities for powers of attorney there are requirements for powers of attorney for certain specific purposes For example if the power of attorney is to be used in a deeds registry it must be attested either by two witnesses above the age of fourteen years and competent to give evidence in a court of law or by a magistrate justice of the peace commissioner of oaths or notary public but no person who derives any benefit under such power of attorney may attest it 147 A power of attorney whether special or general is no longer subject to stamp duty 148 General powers of attorney and also powers of attorney to carry out a series of acts or transactions may be registered in the Deeds Registry 149 Tacit authority edit An agent s authority to perform juristic acts on the principal s behalf may be conferred impliedly that is rather by conduct than by the spoken or written word 150 Whether such a tacit authority exists is a question of fact dependent on the principal s intention and is to be inferred from the agent s words and conduct and from admissible evidence of surrounding circumstances 151 For example persons who appoint others to manage their general dealer s business usually intend to confer authority to enter into all such transactions as are reasonably incidental to the management of the business even if this is not expressly stated 152 The authority does not arise by operation of law as is sometimes suggested 153 Rather it is a question of the principal s intention and arises by implied agreement by custom or industry practice or is inferred as being reasonably necessary to carry out express authority incidental authority Tacit authority is a form of actual authority It is no less effective once proved than express authority It should not however be confused with the so called ostensible or apparent authority encountered when a principal is estopped from denying the agent s authority to protect the interests of third parties Instead it is the agent who must acknowledge the agency relationship to protect the principal s interests Involuntary agency edit In some cases where there is no express or implied appointment a person may have authority or more properly power 154 by operation of law to represent another This is not agency in the conventional sense but rather juristic representation The person s power to represent the other is in these cases derived not from manifestation of consent but from an appointment or office or from a relationship between the parties 155 The primary examples of such representatives are a partner for co partners in a partnership a company board of directors for the company a guardian for a ward or pupil a curator for a prodigal or a mentally ill person state officials for the state and a trustee for an insolvent estate 156 Agency by estoppel edit Where an agent does not have actual authority and the principal s words or conduct may be such as to prevent the principal in law or to estop the principal from denying that the agent has authority Where Arthur misleads Kallis by words or by conduct that could reasonably be expected to mislead into believing that Boucher has authority to act for Arthur and Kallis relying reasonably where there is no intention or negligence on Arthur s part on Arthur s representation enters into a transaction with Boucher to Kallis s prejudice then Arthur will be precluded from denying that Boucher had authority Arthur will be bound by the resulting contract as if Boucher had had the necessary authority to conclude such a transaction on Arthur s behalf even though Boucher did not actually have such authority 157 An example of such conduct would be if Arthur allowed Boucher to receive money for Arthur from Kallis on a number of occasions If then on a subsequent occasion Boucher again received money from Kallis but failed to pay it over to Arthur Arthur could not claim that amount from Kallis on the basis that it was owing because Arthur had not received payment Arthur is precluded by Arthur s previous conduct from denying that Boucher had authority to receive the payment on Arthur s behalf In other words Arthur is estopped from denying that Boucher acted as Arthur s agent in receiving the money from Kallis In paying Boucher Kallis is deemed to have paid Arthur and has discharged the obligation 158 Agency by ratification edit If Boucher without express or implied authority enters into a transaction on Arthur s behalf Arthur may after a full disclosure of all the facts ratify the transaction 159 The ratification may be express or implied The effect of a valid ratification is to cloak the purported agent s unauthorised acts with authority retrospectively establishing the relationship of principal and agent after the fact with retroactive effect with the usual consequences of agency 160 This power of ratification however can be exercised only if two conditions are satisfied if Boucher professed to be acting as an agent representing to the third party that he was acting on behalf of a principal 161 and if at the time of the transaction Arthur was actually in existence 162 A principal may not ratify a transaction in part and repudiate it in part If the principal elects to ratify the transaction the entire transaction must be ratified not merely selected parts of it 163 Ratification by the principal may be implied if for example with full knowledge of the facts the principal accepts some benefit under the transaction 164 or even in some cases deliberately maintains silence and fails to repudiate the transaction within a reasonable time 165 Legal effect of agency editPrincipal agent relationship edit The terms of the contract between the principal and agent govern their legal relations Agent s obligations edit The agent must perform the task entrusted by the principal personally in accordance with instructions with reasonable care skill and diligence in good faith must render an account to the principal and must deliver any proceeds of the mandate Personal performance edit An agent must perform the mandate in person Except with the principal s express or implied consent the agent may not delegate duties or engage a sub agent 166 Where however such delegation is necessary to carry out the agency or is customary in the ordinary course of business a tacit agreement to delegate may be inferred 167 Where the agent justifiably engages a sub agent privity of contract does not arise between the principal and the sub agent unless it can be shown that they intended to bind themselves to each other 168 Obedience to principal s instructions edit An agent must act in accordance with and within the limits of the authority conferred by the principal whether express or implied 169 If an agent either negligently or fraudulently fails to perform the mandate or performs it improperly and thereby causes loss to the principal the agent is liable to the principal in damages 170 The agent is also liable to the principal in damages if the agent causes loss to the principal while acting within the scope of the agent s ostensible authority but in excess of the principal s instructions 171 Care skill and diligence edit An agent must carry out instructions with due care skill and diligence 172 The standard of care is that of a reasonable and prudent person in the circumstances 173 Where the performance of the mandate requires special knowledge skill or qualifications the agent by undertaking to carry out the mandate impliedly warrants possession of the requisite knowledge skill and qualifications 174 Good faith edit An agent must carry out his or her duties in good faith 175 Broadly speaking this means that the agent must conduct the principal s affairs in the principal s interests and not for the agent s benefit 176 A number of specific duties are included in this broadly stated duty An agent must not allow his interests and duties to conflict with each other If for example the agent is engaged to buy property the agent may not sell his own property to the principal If engaged to sell the principal s property the agent may not purchase it Without the principal s knowledge and consent the agent may not acquire any personal profit or benefit other than any remuneration due in terms of the agency 177 Where a house owner authorised an agent to sell the house for 2 000 and the agent knowing that a third party was willing to pay that amount persuaded the owner to sell the house to the agent for 1 800 and immediately then sold the house to the third party for 2 000 the owner was held to be entitled to claim the difference of 200 from the agent 178 Likewise an agent instructed to sell property for a specified sum net is not entitled to retain any surplus if he succeeds in obtaining a higher price 179 Account by agent edit An agent must render to the principal an account of all that the agent has done in connection with the authorized transaction 180 In addition the agent is under a continuing obligation to allow the principal to inspect books and relevant vouchers relating to authorised transactions 181 Delivery of proceeds of mandate edit An agent must deliver all the property together with its benefits or accessories or documents to the principal and must pay the principal all the proceeds received in connection with the transaction 182 This includes all secret profits made by the agent 183 An agent who uses the proceeds including moneys received from the transaction for that agent s own purposes is guilty of theft 184 If a duly authorised agent has transacted in the name of a principal any property received by the agent belongs to the principal No further delivery to the principal is necessary to pass ownership to the principal 185 Equally if the agent contracts in the name of the principal the latter becomes a party to the contract and no cession of rights to the principal is necessary 186 Principal s obligations edit The obligations of the principal to the agent are to pay the agent s remuneration to refund expenses and to indemnify the agent Agent s remuneration edit The principal must pay the agent the agreed usual or reasonable remuneration or commission As a rule the agent is entitled to remuneration only if the whole mandate has or all the services agreed have been completed 187 or substantially performed 188 There is no substantial performance by the agent where for example the principal instructs the agent to sell land and the agent sells the land to a person prohibited by law from purchasing it 189 In such a case the agent is not entitled to any remuneration Nor is the agent entitled to commission where the principal is willing to sell the property for a fixed sum free of commission and the agent sells the property for the fixed sum only 190 In the case of estate agents the usual agreement is that the agent is entitled to commission if the principal actually enters into a contract with a person introduced by the agent An agent cannot claim commission for the mere introduction of a person willing and able to contract on the principal s terms unless an agreement to that effect is proved In the case of a mandate to find a purchaser the agent s commission is usually payable on completion of a valid sale 191 If the agent substantially performs the mandate the agent is entitled to remuneration even though the principal negligently or intentionally fails to take the benefit of the services 192 Even if the agent has not completed the mandate the agent is entitled to remuneration where prevented by the wrongful act or dolus of the principal from so doing 193 Likewise the agent is entitled to commission where the transaction was completed by another person but the agent performed the acts that were the efficient cause or causa causans of the transaction 194 although not of course if the agent s services were not the efficient cause of the transaction 195 If the agent has performed the mandate but the services have not been duly and faithfully rendered the agent forfeits the right to remuneration or commission 196 for example if the agent is instructed to sell the principal s property and buys it 197 or takes a secret commission 198 Amount of remuneration edit The amount of the remuneration 199 may be fixed by agreement expressly or impliedly either on a time basis or in a definite sum of money or as a percentage of the value of the subject matter of the transaction in which case the remuneration is known as commission In the absence of an agreement the amount of remuneration is regulated in the case of regular agents such as auctioneers estate agents brokers and factors by the custom or trade usage of the particular business or kind of agency and the amount is almost invariably calculated on a percentage basis Casual agents to whose services a tariff is not applicable are entitled to an amount reasonable in the circumstances 200 sometimes referred to as a quantum meruit 201 The agent in return may claim from the principal an account supported by vouchers if that is necessary to enable the agent to formulate the claim for remuneration 202 Agent s expenses edit The principal must refund to the agent all expenses reasonably and properly incurred by the agent in carrying out the mandate 203 including interest on outlays and advances necessarily made by the agent in its execution 204 Indemnity edit The principal must indemnify the agent for all loss or liability duly incurred by the agent in the execution of the mandate or directly caused to the agent by the execution 205 Relations between principal and third persons editThe relations between the principal and third persons vary according to whether the agent in concluding a transaction has acted within the scope of the authority granted and has disclosed the fact that he acted as an agent or exceeded the authority or concealed his capacity or acted corruptly Agent acts within authority edit Where an agent has disclosed that he acts for a principal and has acted within the scope of the express or implied authority conferred a transaction effected by the agent with a third party is binding as between the principal and the third person 206 There is no necessity for the agent to cede any rights to the principal because the principal as party to the contract with the third party may enforce his or her own rights under the contract 207 Equally liability under the contract is imposed directly on the principal who may be sued by the third party 208 No benefit or liability under the transaction attaches to the agent 209 Even if the agent has not acted in the interests of the principal or has actually defrauded the principal the latter is bound by the transaction if the third person was not a party to the irregularity and if the agent acted in fact within the express or implied scope of his authority 210 Agent exceeds authority edit Where the agent exceeds the express or implied authority in transacting the principal is not bound by the transaction 211 If however the principal has been enriched by or has benefited from the transaction at the expense of the third party the principal is bound to the third party to the extent that the principal has been enriched 212 The principal is not obliged to accept such benefit and may make restitution 213 On the other hand where the agent has acted within his ostensible authority but has unknown to the third party exceeded the private instructions of the principal the principal is bound by the transaction based on estoppel The principal has however a right of action against the agent for any loss sustained by the principal 214 Where an agent in the course of his engagement acquires knowledge of some fact that it is his or her duty to communicate to the principal and fails to do so the notice is imputed to the principal 215 Only actual and not constructive knowledge of the agent can be imputed to the principal 216 Agent conceals capacity undisclosed principal edit If an agent does not disclose to a third party that he is acting as agent and concludes a contract with the third party as if he were the principal in the transaction the third party may treat the contract as binding on the agent The third party may sue the agent as principal on the contract equally the agent may as principal sue the third party on the contract 217 When however the undisclosed principal discovers that the contract that he in fact authorised has been concluded he may adopt it and may consequently sue the third party on it 218 Equally the third party on discovering the undisclosed principal may sue the principal on the contract 219 it follows that the third party has a choice or an election to sue either the agent or the undisclosed principal when discovered but having elected to sue one of them the third party is debarred from suing the other even if he or she sues the agent before being aware that there is a principal 220 The third party may be sued on the contract by either the principal or agent but not by both the principal having the preferential right to do so 221 The position of the undisclosed principal is altogether different from that of the unnamed principal Where an agent discloses that he or she is acting as agent but does not disclose the identity of that principal the normal rules of representation apply The contract creates rights and obligations for the unnamed principal and the third party not for the agent 222 Agent acts corruptly edit Where the agent is given or promised a secret benefit by the third party to a contract that is intended to influence the agent in that party s favour the gift is a bribe and the principal has the choice of repudiating the contract or affirming it and obtaining such relief as the court may think adequate 223 224 Relations between agent and third parties editAgent edit Where the agent has concluded a transaction with a third party within the scope of the agent s authority no rights or obligations ensue as between the agent and the third party 225 For example if Arthur in his capacity as the lawful agent of Boucher borrows money from Kallis Arthur is not liable to repay the money to Kallis and cannot be sued by Kallis for it 226 In the following cases however an agent is liable personally on the contract where the agent agreed to be personally liable 227 and where the agent did not disclose to the third party that he or she was acting as an agent 228 Where an agent acts on behalf of a principal who does not exist 229 or lacks legal capacity 230 it is sometimes said that the agent is liable personally on the contract 231 This proposition holds good only when it can be shown as a matter of construction that the so called agent in fact acted as a principal party to the contract 232 Of course if the agent was aware of the true state of affairs and acted fraudulently the agent may be held liable in delict 233 So too perhaps if the agent acted negligently 234 If the agent warranted that he or she had authority to act for the principal the agent may be held liable for breach of warranty of authority 235 Agent exceeds authority edit Where the agent exceeds his authority in concluding a contract the agent is liable to the third party not on the contract but for damages for breach of an implied warranty of authority The measure of damages claimable by the third party is the amount of loss sustained by the third party because of the non performance of the intended contract by the principal 236 Termination of agent s authority editSince the authorisation and the contract of mandate are distinct juristic acts the rules that govern the termination of the agent s authority to bind the principal are not necessarily the same as those governing the termination of the contractual relationship between the principal and agent 237 The contract of mandate may be terminated by any of the methods applicable to contracts generally for example by performance or by the mutual consent of the parties An executory contract of mandate may however generally be terminated by the unilateral act of either party revocation 238 by the mandatory principal or renunciation 239 by the mandatary agent unless the express or implied terms of the contract dictate otherwise 240 This rule which runs contrary to accepted contractual principles is derived from the common law where mandate was essentially a gratuitous contract In modern law the mandatary is usually remunerated for services rendered in such cases at least it is doubtful whether the contract is freely terminable at either party s will 241 An agent s authority to conclude juristic acts on behalf of the principal may be terminated by any of the following occurrences performance of the authorised transaction 242 effluxion of time which may occur if a time limit has been fixed by the parties 243 or in the absence of a stipulated time when a reasonable time has elapsed death of the principal 244 or the principal s insanity 245 insolvency 246 or attainment of majority 247 death of the agent or the agent s insanity 248 and revocation by the principal Save for certain possible exceptions discussed below the principal may summarily revoke the agent s authority to perform a juristic act on the principal s behalf if the act in question has not already been performed This is so even if the authority is expressed to be irrevocable 249 If Arthur for example engages Boucher to find a suitable person to buy Arthur s house and authorises Boucher to sell the house Arthur may revoke the authority granted to Boucher After such revocation Boucher cannot bind Arthur to a sale of the house though Boucher may claim damages from Arthur for breach of contract In order to be effective as against interested third parties however the revocation of authority must be communicated to such third parties 250 Irrevocable authority edit The question of whether an authority conclude a juristic act on behalf of another can be granted irrevocably is a controversial one 251 It has been held in a number of cases that an authority is irrevocable in the strict sense where the agent is appointed procurator in rem suam that is where the agent is authorised to do an act for the agent s own benefit and not for the principal s or as it is generally styled the authority is coupled with an interest or forms part of a security 252 for example where an agent is authorised to pass a bond in his own favour over the principal s property 253 This proposition reflects Anglo American rather than Roman Dutch law which consistently refused to recognise the validity of a procurator in rem suam mentioned by Voet 254 Such a procurator was in Voet s time no more than a cessionary and of course the cedent lacked the power to revoke the cession unilaterally 255 Whether the Supreme Court of Appeal will accept that an authority coupled with an interest is irrevocable remains to be seen The better view writes Graham Bradfield appears to be that an authority is always revocable even if it is linked with a contract of mandate which cannot be terminated unilaterally 256 257 Of course if the principal has contracted not to revoke the authority but does so the principal will be liable in damages for breach of contract 258 See also edit nbsp Law portalContract Law of South Africa Law of obligationsReferences editBooks edit J E De Villiers J C Macintosh amp D B Knight Law of Agency in South Africa 2nd revised edn Cape Town Juta 1956 James Thomas Riley Gibson South African mercantile and company law 8th edn Revised by Coenraad Visser Lansdowne Juta 2005 D J Joubert Die Suid Afrikaanse verteenwoordigingsreg Cape Town Juta 1979 Ellison Kahn Contract and Mercantile Law through the Cases A Collection of Extracts from Decisions of the Courts vol 1 Cape Town Juta 1971 Alastair James Kerr The Law of Agency Durban Butterworths 1972 4th edn 2006 B A Schuijling Representation power of attorney and mandate chap 7 of Introduction to Dutch law 5th edn Eds Jeroen Chorus Ewoud Hondius amp Wim Voermans Alphen aan den Rijn Kluwer Law International 2016 Johan Scott amp Steve Cornelius eds The law of agency in The Law of Commerce in South Africa 2nd edn Cape Town Oxford University Press Southern Africa 2015 B P Wanda Agency and representation in The Law of South Africa 2nd edn Vol 1 Eds W A Joubert amp J A Faris Durban LexisNexis Butterworths 2003 Reinhard Zimmermann The Law of Obligations Roman Foundations of the Civilian Tradition Oxford Oxford University Press 1996 Cases edit Chartaprops 16 Pty Ltd and Another v Silberman 2009 1 SA 265 SCA Joel Melamed and Hurwitz v Cleveland Estates Pty Ltd Joel Melamed and Hurwitz v Vorner Investments Pty Ltd 1984 3 SA 155 A Langley Fox Building Partnership Pty Ltd v De Valence 1991 1 SA 1 A Notes edit Tolalisator Agency Board OFS v Livanos 1987 3 SA 283 W 291 Mason v Vacuum Oil Co of SA Ltd 1936 CPD 219 at 223 Whittal v Alexandria Municipality 1966 4 SA 297 F 301 Stuart 1966 Annual Survey 99 100 Wanda De Wet Agency LAWSA 2 ed vol 1 176 See Gibson Mercantile and Company Law chap 6 See Wanda DeWet Agency LAWSA 2 ed vol 1 Wanda De Wet Agency LAWSA 2 ed vol 1 175 Totalisator Agency Board OFS v Livanos Wanda De Wet Agency LAWSA 2 ed vol 1 176 1984 3 SA 155 A Wanda De Wet Agency LAWSA 2 ed vol 1 175 De Villiers amp Macintosh Agency 2 3 Whittal v Alexandria Municipality De Villiers amp Macintosh Agency 3 See however Wanda Agency LAWSA 2 ed vol 1 175 Transvaal Cold Storage Co Ltd v Palmer 1904 TS 4 at 19 Zimmermann Obligations 45 56 On the historical development of agency in South African law see De Villiers amp Macintosh Agency 4 13 See also De Wet 1942 6 THRHR 99 210 See Joubert Agency and Stipulatio Alteri in Zimmermann amp Visser Southern Cross 335 See Zimmermann Obligations 45 58 See Faure v Louw 1880 1 SC 3 at 7 See Goodricke amp Son v Auto Protection Insurance Co Ltd 1967 2 SA 501 W 503 504 Lee Introduction to Roman Dutch Law 310 Joubert Verteenwoordigingsreg 17 18 Grotius 312 2 Voet 17 1 2 Van der Linden 1 15 14 3 See Pothier Mandat Prelim Art See Mason v Vacuum Oil 222 224 See Blower v Van Noorden 1909 TS 890 at 897 Totalisator Agency Board DES v Livanos See Joubert amp Van Zyl Van Zyl Mandate and Negotiorum Gestio LAWSA First Re issue vol 17 De Wet amp Van Wyk Kontraktereg 386 389 Joubert amp Van Zyl Van Zyl Mandate and Negotiorum Gestio LAWSA First Re issue vol 17 4 and the authorities cited there In this type of contract a piece of work operis is let out by the conductor to the locator D 17 1 1 4 Grotius 3 12 6 Van der Linden 1 15 14 3 Huber 3 12 6 Pothier Mandat 3 See however Voet 17 1 2 D 17 1 6 pr 17 1 7 17 1 36 1 De Villiers amp Macintosh Agency 9 Totalisator Agency Board DES v Livanos See Kahn Contract and Mercantile Law I 849 Kerr 1979 96 SALJ 323 Joubert amp Van Zyl Van Zyl Mandate and Negotiorum Gestio LAWSA First Re issue vol 17 5 6 For the mandatary s position in Roman law in this regard see generally Zimmermann Obligations 45 56 D 17 1 26 8 Totailsator Agency Board DES v Livanos De Villiers amp Macintosh Agency 7 Zimmermann Obligations 49 50 Joubert amp Van Zyl Van Zyl Mandate and Negotiorum Gestio LAWSA First Re issue vol 17 2 3 The Firs Investment Ltd v Levy Bros Estates Pty Ltd 1984 2 SA 881 A The Firs Investment v Levy Bros Estates 885 Totalisator Agency Board OFS v Livanos Wanda De Wet Agency LAWSA 2 ed vol 1 175 Joubert amp Van Zyl Van Zyl Mandate and Negotiorum Gestio LAWSA First Re issue vol 17 6 Wanda De Wet Agency LAWSA 2 ed vol 1 175 Kahn Contract and Mercantile Law I 848 9 Totalisator Agency Board OFS v Livanos Wanda De Wet Agency LAWSA 2 ed vol 1 175 Wanda De Wet Agency LAWSA 2 ed vol 1 175 Kahn Contract and Mercantile Law I 849 Kerr Agency 2 10 Blower v Van Noorden 899 Kerr Agency 14 Smit v Workmen s Compensation Commissioner 1979 1 SA 51 A 58A 61B E Lee Roman Law 320 321 Schulz 542 Thomas Textbook 296 Van Warmelo para 487 Van Zyl Roman Law 304 305 Zimmermann 393 Lee distinction between sub categories of locatio conductio is not sharply drawn in the texts of Roman law Schulz believes distinction should be abandoned altogether 544 See also ADE Lewis The Trichotomy in Locatio Conductio 1973 8 The Irish Jurist 164 Zimmermann It would be quite ahistorical to superimpose systematic distinctions over the Roman sources or to approach them with modem categories in mind On the other hand the Roman sources usually provide the historical foundation the casuistic basis for these classifying and structuring efforts of the later civilians and in order to prevent the modern lawyer from drowning in the flood of Roman case law some sort of systematic life jacket appears to be indispensable 340 Kerr The distinction between the sub categories is firmly embedded in modern law Even if it were to be abandoned the independent contractor s contract would still be locatio conductio and not mandatum Kerr 14 Agency 14 15 On significant differences between contracts of mandate amp of locatio conductio operis See Kerr s note on Smit s case in 1979 96 SALJ 323 Emphasis on requirement of good faith in mandataries not found to same extent in authorities on locatio conductio operis although conductores operis have to show necessary degree of skill Mandatary is bound to impart information in circumstances in which a conductor operis is apparently entitled to remain silent without being in breach of contract See Smit s case 61G Mandatary bound to account to his mandator a conductor operis not bound to account to locator operis Smit s case 61G With certain exceptions mandatary entitled to indemnification in respect of expenses liabilities incurred loss damage suffered in execution of mandate No comparable rules in favour of conductores operis Also special rules on termination of mandates For what Kerr describes as a new detailed and comparative approach to construction contracts see RC van Deventer The Law of Construction Contracts Chancery Law Publishing and Juta amp Co Ltd 1993 See Kerr Agency 10 11 1931 AD 412 See especially 432 434 See the comment on this case in Smit v Workmen s Compensation Commissioner 1979 1 SA 51 A 61H 62A Agency 15 See Kerr s comment on the case in 1979 96 SALJ 323 at 324 Kerr Agency 15 It is said in the case at 55D that he had to obtain proposals for insurance Kerr Agency 15 See Kerr 1979 96 SALJ 323 at 325 326 The cases there referred to are on estate agents The court did not appear to think that the Digest reference to those who transport goods or passengers cited in Smit s case at 5 pr as conductores operis could ground a distinction between travel agents and estate agents Schulz says at 543 Locare means to place out ie to entrust something to a person The etymology of conducere is obscure If somebody received a thing in order to transport it to another place he was called conductor because he took the thing with him rem perferendam conduxit the sender was called locator because he placed the thing in the hands of the carrier Kerr opines that this does not give ground for classifying travel agents with those who transport goods or passengers Agency 15 1931 AD 412 11 See especially De Villiers CJ at 432 434 and Wessels JA at 442 445 See also R v AMCA Services Ltd and another 1959 4 SA 207 A 212A D Bowstead amp Reynolds 1 026 1 030 8 176ff 2 Chitty on Contracts para 32 010 Two examples may be quoted the American Restatement on Agency 2 ed says in its comment b to 2 The word servant is used in the definition in 2 in contrast with independent contractor The latter term includes all persons who contract to do something for another but who are not servants in doing the work undertaken The cross references in the comments to 2 are mainly to sections dealing with tort and it seems therefore that the definition is framed with delict in mind Writing on the English Law of torts Professor PS Atiyah Vicarious Liability in the Law of Torts 1967 also divides all persons who need to be considered in cases involving vicarious liability into two classes 1 servants and 2 everyone else but he calls all non servants agents not as in the Restatement independent contractors He says at 33 In this book I propose to separate the treatment of vicarious liability for servants from the treatment of vicarious liability for other persons and despite the criticism of this terminology already noted I propose to use the terms principal and agent to describe parties other than masters and servants to whose relationship the law attaches vicarious liability See the references in Bowstead amp Reynolds and 2 Chitty on Contracts in the preceding footnote Agency 16 Kerr Agency 16 1966 2 SA 428 A Para 18 See Outline of the Law of Agency 1998 with its commentary on important English cases In Niselow v Liberty Life Association of Africa Ltd 1998 4 SA 163 SCA at 165 E F G H Streicher JA with whom the other members of the court concurred said An independent contractor undertakes the performance of certain specified work or the production of a certain specified result An employee at common law on the other hand undertakes to render personal services to an employer In the former case it is the product or the result of the labour which is the object of the contract and in the latter case the labour as such is the object see Smit v Workmen a Compensation Commissioner 1979 1 SA 5 1 A at 61B Put differently an employee is a person who makes over his or her capacity to produce to another an independent contractor by contrast is a person whose commitment is to the production of a given result by his or her labour per Brassey The Nature of Employment 1990 11 ILJ 889 at 899 On the problems encountered see Professor M Brassey The Nature of Employment 1990 11 IL 889 at 890 891 There are indications that developments in this area of the law of delict are under consideration see Professor JR Midgley Mudbaths and Malpractice Obiter 1987 117 and the same learned author s note on Mandate Agency and Vicarious Liability Conflicting Principles 1991 108 SAJJ 419 It may be noted in passing that Professors De Wet and Van Wyk 386 389 and Professor Van Jaarsveld Handeisreg 212 use the Afrikaans word lashebber to mean mandatary whereas Adv Van der Merwe and the Hon Mr Justice Olivier 510 fn 77 give it lashebber as the translation of independent contractor and Professors Neethling Potgieter and Visser The Law of Delict 339 refer to The contract of mandate locatio conductio opens This is confusing From Roman times to the present mandate and locatio conductio opens have differed appreciably from each other See also below ch 3 The usage of the former Professors Dc Wet and Van Wyk and Professor Van Jaarsveld is to be preferred as one should follow writers on contract rather than those on delict when one determines the classification of contracts See Kerr Agency 14 16 and chapter 3 South African Property Practice and the Law 1987 at 933 See Voet 3 3 7 Faure v Louw 17 Nel v SA Railways amp Harbours 1924 AD 30 at 36 Mineworkers Union v Cooks 1959 1 SA 709 W De Wet amp Macintosh Agency 143 144 The practical value of this distinction has been questioned since the scope of an agent s authority depends entirely on the terms or limits of the principal s authorisation See Gibson Mercantile and Company Law 202 Arendse v Resident Magistrate s Clerk Cape Town 1912 CPD 272 at 278 Voet 3 3 7 Pothier Mandat 144 Faure v Louw 17 Measrock v Liquidator New Scotland Land Co Ltd 1922 AD 237 at 240 Voet 17 1 4 Benoni Produce amp Coal Co Ltd v Gundelfinger 1918 TPD 453 at 458 9 Jacobs Levitatz amp Braude v Kroonstad Roiler Mills 1921 OPD 38 at 43 See generally De Villiers amp Macintosh Agency 224 40 Gibson Mercantile and Company Law 213 14 See also Glass v AG Hendrie amp Co Pvt Ltd 1957 1 PH A6 SR Chiapphi amp Co v Jaffray s Trustee 1828 1849 2 Menz 206 at 211 Queen v Plockey 1888 5 HCG 368 at 372 Barclays Western Bank Ltd v Fourie 1979 4 SA 157 C 162 De Villiers amp Macintosh Agency 219 23 Gibson Mercantile and Company Law 214 Chiapphi amp Co v Jaifray s Trustee 211 Marcus v Stamper amp Zoutendijk 1910 AD 58 at 88 Gibson Mercantile and Company Law 215 The del credere agent is a type of factor Dely amp De Kock v Civil Commissioner 1906 TS 94 at 96 Marcus v Stamper amp Zoutendijk 81 88 R v Le Roux 1959 1 SA 808 T 809 De Villiers amp Macintosh Agency 185 219 Gibson Mercantile and Company Law 211 213 Kerr Agency 89 91 Gluckman v Landau amp Co 1944 TPD 261 Brayshaw v Schoeman 1960 1 SA 625 A Estate Agency Affairs Act 112 of 1976 De Villiers amp Macintosh Agency 240 250 Gibson Mercantile and Company Law 215 219 Voet 3 3 9 17 De Villiers v McIntyre NO 1921 AD 425 at 439 450 Kayser amp De Beer v Estate Liebenberg 1926 AD 91 at 96 98 Eksteen v Van Schalkwyk 1991 2 SA 39 T Attorneys Act 53 of 1979 as amended De Villiers amp Macintosh Agency 158 Deeds Registries Act 47 of 1937 ss 87 102 Deeds Registries Act 47 of 1937 ss 15 102 Voet 3 1 1 Van der Linden 3 2 4 Pothier Louage 10 Findlay v Knight 1935 AD 58 at 71 Klopper v Van Rensburg 1920 EDL 239 Admission of Advocates Act 74 of 1964 De Villiers amp Macintosh Agency 158 159 Grotius 1 4 5 In modern law the executor not the heir represents the deceased estate The estate is an aggregate of assets and liabilities without legal personality The executor is neither the agent of the estate nor indeed the agent of the heir See generally the Administration of Estates Act 66 of 1965 Wille s Principles chap 25 Corbett et al Succession 6 10 and the authorities cited there Trust Property Control Act 57 of 1988 See generally Honore amp Cameron Trusts 105 115 Insolvency Act 24 of 1936 ss 69 121 See generally De la Rey Mars Insolvency 244 246 Trust Property Control Act 57 of 1988 De Villiers v McIntyre NO 449 Wanda De Wet Agency LAWSA 2 ed vol 1 189 Kahn Contract and Mercantile Law I 850 Kerr Agency 52 Wanda De Wet Agency LAWSA 2 ed vol 1 189 Kahn Contract and Mercantile Law I 848 849 Maasdorp v The Mayor of Graaff Reinet 1915 CPD 636 at 639 Maasdorp v The Mayor of Graaff Reinet Caledon Trust and Fire Assurance Co Ltd v Magistrate of Riversdale 1937 CPD 349 Ex parte Bullard 1937 TPD 297 Wanda De Wet Agency LAWSA 2 ed vol 1 191 Uniform Rule of Court 7 Deeds Registries Act 47 of 1937 ss 20 and 50 reg 65 Alienation of Land Act 68 of 1981 s 2 1 Companies Act 61 of 1973 s 69 1 a Myflor Investments Ply Ltd v Everett NO 2001 2 SA 1083 C 1095 1096 Deeds Registries Act 47 of 1937 s 95 The former requirement under the Stamp Duties Act 77 of 1968 that powers of attorney were subject to stamp duty of R1 was abolished by s 41 1 of the Taxation Laws Amendment Act 32 of 1999 with effect from 1 April 1999 Deeds Registry Act 47 of 1937 s 3 1 u See for example Strachan v Blackbeard amp Son 1910 AD 282 at 290 Dicks v SA Fire amp General Insurance Co Ltd 1963 4 SA 501 N Dicks v SA Mutual Fire amp General Insurance Co Ltd 505 Inter Continental Financing and Leasing Corporation Pty Ltd v Stands 56 and 57 Industria Ltd 1979 3 SA 740 W at 747 748 Glofinco v ABSA Bank Ltd t a United Bank 2001 2 SA 1048 W 1058 Wanda De Wet Agency LAWSA 2 ed vol 1 192 AA Smith v Ismail Hoosen 1905 26 NLR 404 Haine v Pattrick 1917 TPD 110 Kahn v Leslie amp Son 1928 EDL 416 Goldblatt s Wholesale P Ltd v Damalis 1953 3 SA 730 O Ellanco International Trading v SA Botswana Haullers Pty Ltd 1992 2 SA 299 W See Wanda De Wet Agency L4WSA 2 ed vol 1 192 and the authorities referred to there See also the comments of Lewis J in Glofinco v ABSA Bank 1059 but note that on appeal at 2002 6 SA 470 SCA the court dealt with the matter on the basis of estoppel Bester 1972 89 SALJ 49 at 50 De Villiers amp Macintosh Agency 3 4 Wanda De Wet Agency LAWSA 2 ed vol 1 188 De Villiers amp Macintosh Agency 3 4 Wanda De Wet Agency LAWSA 2 ed vol 1 188 See Monzali v Smith 1929 AD 382 Haddad v Livestock Products Central Co op Ltd 1961 2 SA 362 W 367 Poort Sugar Planters Ply Ltd v Minister of Lands 1963 3 SA 352 A 364 Service Motor Supplies 1956 Pty Ltd v Hyper Investments Pty Ltd 1961 4 SA 842 A 849 Johaadien v Stanley Porter Paarl Ply Ltd 1970 1 SA 394 A 402 Van Rooyen v Minister van Openbare Werke en Gemeenskapbou 1978 2 SA 835 A 848 849 Beyleveld NO v Southern Life Association Ltd 1987 4 SA 238 C African Life Assurance Co Ltd v NBS Bank Ltd 2001 1 SA 432 W 451 NBS Bank Ltd v Cape Produce Co Pty Ltd 2002 1 SA 397 SCA 411 412 paras 25 26 South African Eagle Insurance Co Ltd v NBS Bank Ltd 2002 1 SA 560 SCA 575 paras 27 39 Glofinco v ABSA Bank Ltd t a United Bank 2001 2 SA 1048 W 1060 1067 2002 6 SA 470 SCA 480 483 paras 12 18 See Concor Holdings Pty Ltd t a Concor Technicrete v Potgieter 2004 6 SA 491 SCA at 494 495 paras 7 9 dealing with estoppel by conduct See generally Wanda De Wet Agency LAWSA 2 ed vol 1 210 212 Rabie Daniels Estoppel LAWSA 2 ed vol 9 449 473 See Faure v Louw Maclear School Board v Roberts 1911 EDL 205 See Legg amp Co v Premier Tobacco Co 1926 AD 132 and generally Wanda De Wet Agency LAWSA 2 ed vol 1 200 209 De Villiers de amp Macintosh Agency chap 6 SR van Jaarsveld Die Leerstuk van Ratifikasie in die Suid Afrikaanse Verteenwoordigingsreg 1974 Reid v Warner 1907 TS 961 at 976 Wanda De Wet Agency LAWSA 2 ed vol 1 207 De Villiers amp Macintosh Agency 302 Van Jaarsveld 248 See Peak Lode Gold Mining Co Ltd v Union Government 1932 TPD 48 Caterers Ltd v Bell amp Anders 1915 AD 698 Keystone Trading Co v Die Verenigde amp c Mij 1926 TPD 218 Wanda De Wet Agency LAWSA 2 ed vol 1 203 Rand Trading Co Ltd v Lewkewitsch 1908 TS 108 McCullogh v Fernwood Estate Ltd 1920 AD 204 at 207 217 Sentrale Kunsmis Korp Edms Bpk v NKP Kunsmisverspreiders Edms Bpk 1970 3 SA 367 A 384 390 Nordis Construction Co P Ltd v Theron Burke amp Isaac 1972 2 SA 535 D Swart v Mbutzi Development Edms Bpk 1975 1 SA 544 T Steenkamp NO v Provincial Tender Board Eastern Cape 2006 3 SA 151 SCA para 48 Wanda De Wet Agency LAWSA 2 ed vol 1 203 As regards the position in the case of pre incorporation contracts for companies to be formed see s 21 of the Companies Act 71 of 2008 This section states that provided its requirements are complied with a contract entered into by someone purporting to act as agent for a company not yet formed can be ratified by the company once the company has been incorporated and is entitled to commence business In the absence of ratification or rejection within three months after the company s incorporation the contract will be regarded as having been ratified s 21 5 The position with regard to close corporations is regulated by the Close Corporations Act 69 of 1984 s 53 Keystone Trading Co v Die Verenigde amp c Mif Theron v Leon 1928 TPD 719 See Broderick Motors Distributors Pty Ltd v Beyers 1968 2 SA 1 O 5 See for example Booysen v Cyrus 1909 26 SC 74 Wanda De Wet Agency LAWSA 2 ed vol 1 201 Legg amp Co v Premier Tobacco Co Faure v Neethling amp Co v Beyers 1895 12 SC 438 at 443 Prince v Webster 1905 22 SC 191 Dreyer v Sonop Bpk 1951 2 SA 392 O Wilmot Motors Pty Ltd v Tucker s Fresh Meat Supply Ltd 1969 4 SA 474 T Voet 17 1 5 Van Leeuwen CF 1 4 24 9 Belonje v African Electric Co Pty Ltd 1949 1 SA 592 EDL 599 Strydom v Roodewal Management Committee 1958 1 SA 272 O 273 Goodgold Jewellery Pty Ltd v Brevadau CC 1992 4 SA 474 W Joubert amp Van Zyl Van Zyl Mandate and Negotiorum Gestio LAWSA First Re issue vol 17 9 Wilson v Tatham 1898 19 NLR 35 Kennedy v Loynes 1909 26 SC 271 at 280 Steenkamp v Du Toit 1910 TS 171 at 177 Nel v SA Railways amp Harbours 1924 AD 30 Turkstra v Kaplan 1953 2 SA 300 1 Niceffek Edms Bpk v Easivaal Motors Edms Bpk 1993 2 SA 144 O Joubert amp Van Zyl Van Zyl Mandate and Negotiorum Gestlo LAWSA First Re issue vol 17 9 Voet 17 1 5 8 Turkstra v Kaplan 304 Denys v Elvy 1965 2 SA 410 SRA Karaolias v Suleman t a Jack s Garage 1975 3 SA 873 R 875 Sachs v Watson 1993 2 SA 88 C Joubert amp Van Zyl Van Zyl Mandate and Negotiorum Gestio LAWSA First Re issue vol 17 9 Joubert amp Van Zyl Van Zyl Mandate and Negotiorum Gestio LAWSA First Re issue vol 17 8 Voet 17 1 9 Bloom s Woollens Ply Ltd v Taylor 1962 2 SA 532 A at 538 Inspan Motors Pty Ltd v Kock 1970 4 SA 491 N 497 Nel v SA Railways amp Harbours 36 Denys v Elvy Blatt v Swakopmunder Bankverein GmbH 1929 SWA 90 Mazibuko v Singer 1979 3 SA 258 W Faure v Louw 18 Joubert amp Van Zyl Van Zyl Mandate and Negotiorum Gestio LAWSA First Re issue vol 17 10 De Villiers amp Macintosh Agency 326 See for example Weber amp Pretorius v Gavronsky Brothers 1920 AD 48 at 53 Bloom s Wooilens Pty Ltd v Taylor Sciama amp Co v Table Bay Harbour Board 1900 17 SC 121 Honey amp Blanckenberg v Law 1966 2 SA 43 R Mouton v Die Mynwerkersunie 1977 1 SA 119 A Page NO v Ross 1885 2 BAC 52 at 55 65 Transvaal Cold Storage Co Ltd v Palmer S v Young 1977 1 SA 602 A 609 Bellairs v Hodnell 1978 1 SA 1109 A 1132 De Villiers amp Macintosh Agency 337 Joubert amp Van Zyl Van Zyl Mandate and Negotiorum Gestio LAWSA First Re issue vol 17 11 R v Mime amp Erleigh 7 1951 1 SA 791 A 828 Joubert amp Van Zyl Van Zyl Mandate and Negotiorum Gestio LAWSA First Re issue vol 17 11 Jones v East Rand Extension Gold Mining Co Ltd 1903 TH 325 at 335 Transvaal Cold Storage Co Ltd v Palmer 33 Hargreaves v Anderson 1915 AD 519 Robinson v Randfontein Gold Mining Co Ltd 1921 AD 168 at 171 Peacock v Marley 1934 AD 1 at 3 Durand v Louw 1935 TPD 47 Uni Erections v Continental Engineering Co Ltd 1981 1 SA 240 W 252 253 Mallinson v Tanner 1947 4 SA 681 T Branch v Vic Diamond amp Son Pty Ltd 1957 1 SA 331 SR Krige v Van Dijk s Executors 1918 AD 110 Hansa v Dinbro Trust Pty Ltd 1949 2 SA 513 T 517 Liquidator African Commercial Co Ltd v Estate Bey 1955 3 SA 565 SR Mailin v Scorgie 1950 4 SA 344 7 347 Rellams Pty Ltd v James Brown amp Hamer Ltd 1983 1 SA 556 N at 560 561 Dale Street Congregational Church v Hendrikse 1992 1 SA 133 E Joubert amp Van Zyl Van Zyl Mandate and Negotiorum Gestio LAWSA First Re issue vol 17 12 See Doyle v Fleet Motors PE Pty Ltd 1971 3 SA 760 A Jacobsohn v Simon amp Pienaar 1938 TPD 116 Hansa v Dinbro Trust Pty Ltd Fisher v Levin 1971 1 SA 250 W 255 D 3 3 46 Voet 17 1 9 Van der Linden 1 15 14 Joubert amp Van Zyl Van Zyl Mandate and Negotiorum Gestio LAWSA First Re issue vol 17 13 Transvaal Cold Storage Co Ltd v Palmer 33 Durand v Louw 1935 TPD 47 Mallinson v Tanner Uni Erections v Continental Engineering Co Ltd De Villiers amp Macintosh Agency 330 331 R v Gush 1934 AD 260 A v Solomon 1953 4 SA 518 A S v Kotze 1965 1 SA 118 A S v Mphatswanyane 1980 4 SA 253 B Voet 41 2 8 Van der Keessel Th 478 Mills amp Sons v Trustees of Benjamin Bros 1876 6 Buch 115 at 122 Newmark Ltd v The Cereal Manufacturing Co Ltd 1921 CPD 52 at 61 Voet 17 1 9 Van der Keessel Th 478 Blower v Van Noorden 897 898 Gowan v Bowern 1924 AD 550 at 563 Eschini v Jones 1929 CPD 18 at 25 Sliom v Block 1936 TPD 105 at 109 Meyer NO v Bree Holdings Pty Ltd 1972 3 SA 353 F Maw v Keith Reid 1975 4 SA 603 C De Villiers amp Macintosh Agency 371 Voet 17 1 11 Sammel v Jacobs amp Co 1928 AD 353 at 368 Metro Goldwyn Mayer SA Ply Ltd v Herman 1938 TPD 226 Ese Financial Services Pty Ltd v Cramer 1973 2 SA 805 C 812 See BK Tooling Edms Bpk v Scope Precision Engineermg Edms Bpk 1979 1 SA 391 A Mogg v Kemsley 1885 1888 2 SAR 233 Cohen v Rawbone 1904 21 SC 169 Gluckman v Landau amp Co Brayshaw v Schoeman 630 John H Pritchard amp Associates Pty Ltd v Thorny Park Estates Pty Ltd 1967 2 SA 511 D at 514 515 Roux v Schreuder 1968 3 SA 616 O at 620 621 Van Zyl en Seuns Edms Bpk v Nel 1975 3 SA 983 N Bundshuh v Finnegan 1975 1 SA 376 C 377 Reyneke v Botha 1977 3 SA 20 T Commercial Business Brokers v Hassen 1985 3 SA 583 N 585 Watson v Fintrust Properties Ply Ltd 1987 2 SA 739 C Voet 17 1 11 Lumsden v Clark 1895 2 OR 207 Levy v Philips 1915 AD 139 at 142 Consolidated Estates and Trusts Ltd v Turnbuil 1924 TPD 1 at 4 Gluckman v Landau amp Co 267 268 273 Ferndale Investments Pty Ltd v DICK Trust Ltd 1968 1 SA 392 A 394 Generally the right to commission once accrued is not affected by the subsequent fate of the contract Baker v Afrikaanse Nasionale Afslaers en Agentskap Maatskappy Edms Bpk 1951 3 SA 371 A Badenhorst v Van Rensburg 1985 2 SA 321 T 330 Gowan v Bowern 571 Koenig v Johnstone amp Co Ltd 1935 AD 262 at 271 Ferndale Investments Ply Ltd v DICK Trust Ltd De Villiers amp Macintosh Agency 408 See generally Rivalland 1988 51 THRHR 454 467 See Nelson v Hirschhorn 1927 AD 190 John Wilkinson amp Partners Ply Ltd v Berea Nursing Home Ply Ltd in Voluntary Liquidation 1966 1 SA 791 D at 796 De Jongh v Owen Wiggens Trust Maatskappy Bpk 1977 2 PH A43 A De Villiers amp Macintosh Agency 395 Rand Rietfontein Estates v Cohn 1937 AD 317 Barnard amp Party Ltd v Strydom 1946 AD 931 See De Villiers amp Macintosh Agency 417 423 Hargreaves v Anderson Levin v Levy 1917 TPD 702 Buffet v Lurie Bros 1923 CPD 473 De Villiers amp Macintosh Agency 419 Tennant QQ Home v Sutherland 1828 1849 1 Menz 412 Steer amp Co v Rowland 1897 14 SC 358 at 360 Barnabas Plein amp Co v Sol Jacobson amp Son 1928 AD 25 at 30 Verenigde Adverteerders Edms Bpk v Tanner 1947 2 SA 1128 1 KBK Investments Pty Ltd v Investland Cily and Industrial Ply Ltd 1975 2 PH A83 T Hiils v Taxing Master 1975 1 SA 856 D 864 Barnabas Plein amp Co v Sol Jacobson amp Son De Villiers amp Macintosh Agency 362 Joubert amp Van Zyl Van Zyl Mandate and Negotiorum Gestio LAWSA First Re issue vol 17 15 See also Press v Jotwall Investments Pty Ltd 1981 1 SA 261 W See for example Hersov amp Co v Spitz 1927 TPD 938 at 941 Howarth v Lion Steel Construction Co Pty Ltd 1960 3 SA 163 FC See Inkin v Borehole Drillers 1949 2 SA 366 A at 372 Auerbach v Sunbeam Neon Light Co 1938 CPD 471 Flook v Provident Assurance Corporation of Africa Ltd 1958 2 SA PH A49 SR Grotius 3 12 9 Voet 17 1 11 Blesbok Eiendomsagtenskap v Cantamessa 1991 2 SA 712 T Joube amp Van Zyl Van Zyl Mandate and Negotiorum Gestio LAWSA First Re issue vol 17 14 Voet 17 1 10 Commissioner of Taxes v William Dunn amp Co Ltd 1918 AD 607 at 615 Voet 17 1 13 Van Leeuwen CF 1 4 24 12 Blumenthal v Bond 1916 AD 29 at 37 Weber amp Pretorius v Gavronsky Bros 51 De Villiers v The Beaufort West Municipality 1924 CPD 501 at 504 See Woods v East London Municipality 1974 4 SA 541 E 549 Blower v Van Noorden 899 SWA Amalgameerde Afslaers Edms Bpk v Louw 1956 1 SA 346 A Wanda De Wet Agency LAWSA 2 ed vol 1 176 Voet 17 1 9 Schorer Note 340 Van der Keessel Th 572 Voet 17 1 13 Schorer Note 340 Van der Keessel Th 572 Blower v Van Noorden 899 Howard s Debt Collecting Agency v Haarhoff 1925 TPD 272 at 277 SWA Amalgameerde Afslaers Edms Bpk v Louw Nordis Construction Co Pty Ltd v Theron Burke amp Isaac Terblanche v Nothnagel 1975 4 SA 405 C Chappell v Gohl 1928 CPD 47 Randbank Bpk v Santam Versekeringsmaatskappy Bpk 1965 2 SA 456 W 458 1965 4 SA 363 A Price NO v Allied JBS Building Society 1979 2 SA 262 F 268 De Villiers amp Macintosh Agency 438 Du Preez v Laird 1927 AD 21 at 27 Gompels v Skodawerke of Prague 1942 TPD 167 at 171 Clifford Harris Rhodesia Ltd v Todd NO 1955 3 SA 302 SR 303 Natal Bank Ltd v Parsons 1906 TH 102 at 115 Reid v Warner 974 975 Trahair v Webb amp Co 1924 WLD 227 at 234 Baranov Estates v HV Price 1926 47 NLR 347 at 353 Kahn v Leslie amp Son Weedon v Bawa 1959 4 SA 735 D 742 Greyling v WL Ochse Livestock Pty Ltd 1967 2 SA 601 E See Guarantee Investment Corporation Ltd v Shaw 1953 4 SA 479 SR Broderick Motors Distributors Pty Ltd v Beyers 5 See also Wanda De Wet Agency LAWSA 2 ed vol 1 209 Reid v Warner 975 Pothier Obligations 79 Mine Workers Union v Broderick 1948 4 SA 959 A 979 De Villiers amp Macintosh Agency 347 Town Council of Barberton v Ocean Accident amp Guarantee Corporation Ltd 1945 TPD 306 Bird v Sumerville 1961 3 SA 194 A 202 Connock s SA Motors Co Ltd v Sentraal Westelike Kooperatiewe Maatskappy Bpk 1964 2 SA 47 T 53 Randbank Bpk v Santam Versekermgsmaatskappy Bpk 1965 4 SA 363 A 368 Oatorian Properties Pty Ltd v Maroun 1973 3 SA 779 A 787 Allen v Sixteen Stirling Investments Pty Ltd 1974 4 SA 164 D 166 Rabinowitz amp Another NNO v Ned Equity Insurance Co Ltd 1980 1 SA 403 W 407 408 Anderson Shipping Pty Ltd v Guardian Nations Insurance Co Ltd 1987 3 SA 506 A Kerr 1993 110 SALJ 199 Elliot Bros EL Pty Ltd v Smith 1958 3 SA 858 E Sun Couriers Pty Ltd v Kimberley Diamond Wholesalers 2001 3 SA 110 NC 122 para 47 See Anderson Shipping Pty Ltd v Guardian National Insurance Co Ltd Symon v Brecker 1904 TS 745 at 747 Wessels amp Co v Rudman 1911 CPD 667 Natal Trading amp Milling Co Ltd v Ingils 1925 TPD 724 at 727 Wireless Telegraph Co of SA Ltd v Dougall amp Munro Ltd 1927 CPD 380 at 383 Cullinan v Noordkaaplandse Aartappelkernmoerkwekers Kooperasie Bpk 1972 1 SA 761 A 768 769 The doctrine of the undisclosed principal is contrary to the basic principles of contract and agency and has been criticized See for example De Wet amp Van Wyk Kontraktereg 123 128 Wanda De Wet Agency LAWSA 2 ed vol 1 221 234 Joubert amp Van Zyl Van Zyl Mandate and Negotiorum Gestio LAWSA First Re issue Van der Horst Die Leerstuk van die Undisclosed Principal 1971 It originated in English law and was introduced into South African law in Lippert amp Co v Desbats 1869 2 Buch 189 and in O Leary v Harbord 1888 5 HCG 1 cases which have consistently been followed ever since See Van Der Horst at 66 In Cullinan v Noordkaaplandse Aartappelkemmoerkwekers Kooperasie Bpk the Appellate Division authoritatively decided that despite its anomalous character the doctrine has been adopted into the South African legal system See also Karstein v Moribe 1982 2 SA 282 1 at 292 Sasfin Bank Ltd v Soho Unit 14 CC t a Aventura Eiland 2006 4 SA 513 T Lipped amp Co v Desbats O Leary v Harbord Snyman v Brecker Cook v Aldred 1909 TS 150 Avis Highveld Supply Stores 1925 AD 410 Cullinan v Noordkaaplandse Aartappelkernmoerkwekers Kooperasie Bpk The right of the principal to intervene is excluded on the basis of equity where such intervention could result in prejudice to the third party unforeseen by the third party at the time of entering into the contract Karstein v Moribe 299 The agent cannot contract on behalf of more than one undisclosed principal Cullinan v Noordkaaplandse Aartappelkernmoerkwekers Kooperasie Bpk unless perhaps they are to be jointly liable under the contract see Karstein v Moribe 293 O Leary v Harbord Natal Trading amp Milling Co v Inglis Chappell v Gohl 1928 CPD 47 Wanda De Wet Agency LAWSA 2 ed vol 1 232 Natal Trading amp Milling Co v Inglis Van Staden v Prinsloo 1947 4 SA 842 T See Wanda De Wet Agency LAWSA 2 ed vol 1 232 Lazarus v Ndimangele 1913 CPD 732 Gadlela v Mountjoy 1921 EDL 151 Scholtz v Sieff 1928 OPD 131 at 132 Karstein v Moribe 293 Marais v Perks 1963 4 SA 802 F JPS Nominees Pty Ltd v Kruger 1976 1 SA 89 W at 92 93 Wanda De Wet Agency LAWSA 2 ed vol 1 186 224 Hunt 1963 Annual Survey 171 172 See Allen v Du Preez 1950 1 SA 410 W Edelson v Glenfields Estates Pty Ltd 1955 2 SA 527 F Davies v Donald 1923 CPD 295 Mangold Bros Ltd v Minnaar amp Minnaar 1936 TPD 48 at 54 Plaaslike Boeredienste Edms Bpk v Chemfos Bpk 1986 1 SA 819 A Extel Industrial Ply Ltd v Crown Mills Pty Ltd 1999 2 SA 719 SCA The basis of the principal s right to resile is not fraud but the wrongful and immoral act of the third party see Plaaslike Boeredienste Edms Bpk v Chemfos Bpk See Van der Merwe amp Van Huysteen 1987 50 THRHR 78 The liability of a principal for the delicts of the agent is addressed in the section on strict liability in the entry on the law of delict in South Africa Blower v Van Noorden 899 Commaillie v Jamaloodien 1917 CPD 656 Wood v Visser 1929 CPD 55 Howard s Debt Collecting Agency v Haarhoff Marais v Perks 806 Wanda De Wet Agency L4WSA 2 ed vol 1 233 Logan v Read amp Ash 1892 1893 9 SC 514 Blower v Van Noorden 898 Howard s Debt Collecting Agency v Haarhoff 277 Overseas Trust Corporation Ltd v Godfrey 1940 CPD 177 at 183 Marais v Perks 806 In such a case of course the agent in undertaking the liability acts as principal See Wanda De Wet Agency LAWSA 2 ed vol 1 214 Gardner v Richardt 1974 3 SA 768 C Blower v Van Noorden 898 Howard s Debt Collecting Agency v Haarhoff 277 Overseas Trust Corporation Ltd v Godfrey 183 Marais v Perks 806 Gardner v Richardt Clark v Van Rensburg 1964 4 SA 153 O 159 See also the cases dealing with the undisclosed principal Langham Court Ply Ltd v Mavromaty 1954 3 SA 742 T Trustees of Beyers v Piton amp Beyers 1883 1884 2 SC 373 Hamad v African Mutual Trust 1930 AD 333 See for example L amp SA Exploration Co v Murphy 1886 1887 4 HCG 322 at 335 Wolhuter v Smith 1895 1898 8 HCG 109 Gompels v Skodawerke of Prague 170 Langham Court Pty Ltd v Mavromaly 745 argument of counsel in Hamed v African Mutual Trust 334 Van Eeden v Sasol Pensloenfonds 1972 2 SA 167 O 180 De Villiers amp Macintosh Agency 574 Nordis Construction Co Pty Ltd v Theron Burke amp Isaac 544 Terblanche v Nothnagel Indrieri v Du Preez 1989 2 SA 721 C Wanda De Wet Agency LAWSA 2 ed vol 1 215 See Hutchinson v Hylton Holdings 1993 2 SA 405 T Wanda De Wet Agency LAWSA 2 ad vol 1 215 Indrieri v Du Preez 728 Wille s Principles 1001 Wanda De Wet Agency LAWSA 2 ad vol 1 216 Blower v Van Noorden 901 Peak Lode Gold Mining Co Ltd v Union Government Know v Davis 1933 EDL 109 Calder Potts v McMillan 1956 3 SA 360 F See Wanda De Wet Agency LAWSA 2 ed vol 1 218 It is submitted that it is misleading to speak of an implied warranty when the warranty is not based on tacit consensus but on a misrepresentation and that in the absence of consensus the real basis of liability can only be misrepresentation Such criticism led Miller AJA as he then was to state in Claude Neon Lights SA Ltd v Daniel 1976 4 SA 403 A at 409 that whether the final word on the subject has been spoken by Innes CJ in Blower v Van Noorden might be open to argument See also Ericsen v Germie Motors Edms Bpk 1986 4 SA 67 A at 87 88 where the question was again left undecided Wanda De Wet Agency LAWSA 2 ed vol 1 196 199 See The Firs Investment Ltd v Levy Bros Estates Ply Ltd 886 Consolidated Frame Cotton Corporation Ltd v Sithole 1985 2 SA 18 N 22 Eileen Louvet Real Estate Ply Ltd v AFC Property Development Co Pty Ltd 1989 3 SA 26 A 30 31 See also Joel Melamed and Hurwilz v Cleveland Estates Pty Ltd 1984 3 SA 155 A 171 Voet 17 1 17 See generally Wanda De Wet Agency LAWSA 2 ed vol 1 198 Joubert amp Van Zyl Van Zyl Mandate and Negotiorum Gestio LAWSA First Re issue vol 17 16 Joubert amp Van Zyl Van Zyl Mandate and Negotiorum Gestio LAWSA First Re issue vol 17 16 and the authorities cited there Joubert amp Van Zyl Van Zyl Mandate and Negotiorum Gestio LAWSA First Re issue vol 17 16 Wanda De Wet Agency LAWSA 2 ed vol 1 199 n4 De Villiers amp Macintosh Agency 615 634 See also The Firs Investment Ltd v Levy Bros Estates Ply Ltd 886 Consolidated Frame Cotton Corporation Ltd v Sithole 22 Eileen Louvet Real Estate Ply Ltd v AFC Property Development Co Pty Ltd 30 31 See also Joel Melamed and Hurwilz v Cleveland Estates Pty Ltd 171 Joubert amp Van Zyl Van Zyl Mandate and Negotiorum Gestio LAWSA First Re issue vol 17 16 Eileen Louvet Real Estate Pty Ltd v AFC Property Development Co Pty Ltd at 31 32 Tony Morgan Estates v Pinto 1982 4 SA 171 W See also Magua v Kahn 1981 1 SA 1239 at 1242 1243 Van Leeuwen RHRHR 4 26 11 The Castle Wine and Brandy Co Ltd v Morris 1931 WLD 67 See AN amp G Coal Mining Co Pty Ltd v Stuart 1981 3 SA 521 W See National Board Pretoria Pty Ltd v Estate Swanepoel 1975 3 SA 16 A Voet 17 1 15 Van Bynkershoek Obs Turn vol 1 no 979 Ex parte Administrator of Estate Wessels 1941 OPD 264 Ex parte Kelly 1943 OPD 76 See Tomp amp Playfair v Currie 1969 2 SA 704 RA Wanda De Wet Agency LAWSA 2 ed vol 1 1 97n1 Pheasant v Warne 1922 AD 481 Tucker s Fresh Meat Supply Ply Ltd v Echakowitz 1958 1 SA 505 A Klein NO v South African Transport Services 1992 3 SA 509 W 514 Wanda De Wet Agency LAWSA 2 ed vol 1 197 Mort NO v Henry Shields Chiat 2001 1 SA 464 C See Kerr Agency 255 Ward v Barrett 1962 4 SA 732 N The agent s authority does not lapse on the agent s insolvency because any obligations incurred under a contract concluded by an agent are the principal s obligations See Wanda De Wet Agency LAWSA 2 ed vol 1 197 Voet 17 1 17 Eileen Louvet Real Estate Pty Ltd v AFC Property Development Co Ply Ltd 30 The Firs Investment Ltd v Levy Bros Estates Pty Ltd 886 Consolidated Frame Cotton Corporation Ltd v Sithole 22 Wanda De Wet Agency LAWSA 2 ed vol 1 198 199 De Villiers amp Macintosh Agency 614 But see Magua v Kahn where it was held that the authority cannot be revoked if to do so would expose the agent to loss or suffering With respect writes Graham Bradfield the real issue in such a case is whether the mandate may be revoked without incurring liability in damages for breach of contract Wille s Principles 1002 Bulawayo Market Co v Bulawayo Club 1904 CTR 370 Wilson v Blanck 1909 TS 344 at 350 Wanda De Wet Agency LAWSA 2 ed vol 1 198 The Firs Investment Ltd v Levy Bros Estates Pty Ltd 886 See Wanda De Wet Agency LAWSA 2 ed vol 1 199 De Villiers amp Macintosh Agency 616 617 n29 Kerr Agency 243 251 Joubert 1969 32 THRHR 263 Natal Bank Ltd v Natorp amp Registrar of Deeds 1908 TS 1016 Hunt Leuchars amp Hepburn Ltd In re Jeansson 1911 32 NLR 493 Glover v Bothma 1948 1 SA 611 W at 625 626 See also Van Niekerk v Van Noorden 1900 17 SC 63 Botha v Schultz 1966 2 SA 615 O See Ward v Barrett Kotsopolous v Bilardi 1970 2 SA 391 C Consolidated Frame Cotton Corporation Ltd v Sithole 22 23 Natal Bank v Natorp amp Registrar of Deeds Voet 17 1 17 Hippo Quarries Tvl Pty Ltd v Eardley 1992 1 SA 867 A Wanda De Wet Agency LAWSA 2 ed vol 1 199 Wanda De Wet Agency LAWSA 2 ed vol 1 199 Wille s Principles 1003 See Wanda De Wet Agency LAWSA 2 ed vol 1 199 Ward v Barrett 737 The Firs Investment Ltd v Levy Bros Estates Pty Ltd 886 Retrieved from https en wikipedia org w index php title South African law of agency 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