A mandate should be distinguished from an authority or power of attorney. An authority gives the authorised party the power to perform juristic acts in the name or on behalf of the grantor of the authority, while a mandate does not necessarily include any power to represent the mandator legally.’
Interesting to read the discussion regarding revocation of mandate and authority or power of attorney. See for instance the following paragraphs from the judgement:
[18] The trial court referred to Firs Investment,[4] which pointed to the controversy that surrounds the question of whether an authority to conclude juristic acts on behalf of a principal can be granted irrevocably. According to Lawsa,[5] the uncertainty that exists stems partly from the fact that the distinction is sometimes not made between revocation of authority and termination arising out of contracts of mandate. These are two distinct terms with different rules. The appreciation that a contract of mandate cannot be terminated at will by one of the parties, does not mean that ‘a mandatary’s authority to conclude juristic acts on behalf of [a] principal can be irrevocable. Even if the representative’s authority is linked with a contract of mandate which cannot be terminated unilaterally by the mandator, the authority is revocable. The mandator is liable in damages for breach of the contract of mandate, but the mandatary can no longer conclude juristic acts on behalf of the mandator’. (My emphasis.)
[19] This distinction is important, because the general rule that an agent’s authority may be terminated at will seems to relate to certain types of mandates. In Eileen Louvet Real Estate (Pty) Ltd,[6] in a matter that dealt with a sole and exclusive mandate to sell property given to an agent, this Court observed:
‘It has, of course, often been held that, save for certain exceptions, an agent’s mandate may be summarily revoked by the principal, even if it is expressed to be irrevocable. A mandate in this sense is an authority, derived from an agreement of agency, to perform a juristic act on behalf of the principal. But in law an ordinary estate agent (to whom, for convenience, I shall refer as a realtor) is not appointed by virtue of such an agreement. He cannot sell the property on behalf of the owner, nor can he perform any juristic act binding the owner. The latter merely undertakes to compensate him should a certain eventuality occur; usually if he introduces a willing and able purchaser as a result of which the property is sold to the person thus introduced. The contract between the owner and the realtor is therefore also not an agreement of mandate; the realtor is not obliged to perform his mandate. Hence the contract is sui generis (cf Gluckman v Landau & Co 1944 TPD 261 at 274-5). For the sake of convenience I shall, nevertheless, use the word mandate to denote the realtor’s authority.’[7]
Case attached below…
PS. Any thoughts on the difference between a Proxy and a power of attorney
Would appreciate any comments or authority , more specifically from a sectional title perspective.
Allen West
TONKIN CLACEY PRETORIA
012 346 1278
