NATURE OF AGENCY
An agent is a person who performs acts on behalf of another person and places the latter in legal relationship with third parties. It is a personal contract and the relationship is a fiduciary one. It is for this reason that an agent must not conflict his/her interest with his/her duty and assume the position of a contracting party. Thus he/she cannot purchase the land of his/her principal even at a sale by public auction, unless the principal confirms or ratifies the purchase (Hargreaves v Anderson, 1915 A.D. 519: Osry v Hirsch Laubser & Co. Ltd., 1922 C.P.D. 531).
The Deeds Registries Act 47 of 1937 (“the DRA”) does not permit the registration in favour of an agent of either transfers or servitudes (section 16, by implication) or bonds (section 54).
Generally all persons, provided they have capacity, can enter into the contract of agency. The following is a list of points affecting different mandants:
Executor and Trustee
Both a trustee anti an executor can grant a power, special or general, but not an irrevocable power (Stowe v Royal Insurance Co., 5 E.D.C. (37)). In Alexander and Others v Opperman, 1952 (1) S.A. 609 (O).) it was held that where a trustee had delegated the exercise of his powers to a committee for a definite period he was at liberty to revoke the authority so granted before the expiry of such period, it is accepted that this applies to executors and trustees both testamentary and dative.
An executor cannot, however appoint an agent before the issue of letters of appointment to him (Stowe v Royal Insurance Co., 5 E.D.C. 37). The power must be granted in the capacity as executor or trustee and not in a personal capacity.
Trustee in Insolvency
A trustee can grant a general power of attorney although this seems to have been questioned (Allan v Erlank’s Trustee, 1908 T.S. 1187). This would also be the position in regard to all types of insolvency, including the liquidation of a company.
He/she can grants power only in so far as the insolvency laws allow him/her (see Hamed v African Mutual Trust, 1930 A.D. 335).
This depends on his/her state of mind at the time of granting the power (Pheasant v Warne, 1922 A.D. 481). Since there is no status of insanity, the grantee of a power of attorney where the grantor was insane is entitled to continue to act under it but should, of course, exercise care perhaps slightly higher in degree than ordinarily.
Person not in Existence
Under the common law an agent cannot act for a person not yet in existence (McCullogh v Fernwood Ests. Ltd. 1920 A.D. 204 at p. 207; Peak Lode Gold Mining Co. Ltd. v Union Government 1932 T.P.D. 48 at pp. 50-51; Semer v Retief & Berman, 1948(1) S.A 182 (C).
Guardian of a Minor
It is accepted that guardian can grant a power on behalf of the minor (see Ex parte Bullard et Uxor, 1937 T.P.D. 297), but the agent would have no greater powers than the guardian and would have to comply with any formalities regarding the alienation of the minor’s property.
A minor can grant a power with his guardian’s consent but this would be valueless as the guardian must act on behalf of the minor except in regard to antenuptial contracts, when he assists.
These must act through their officials having power to act in terms of the constitution. They may also, where their constitution permits, grant powers of attorney to officials or others to act as their agents.
Regulation 34(2) of the DRA allows one partner to affix the firm’s signature in dealing with firm property so long as the firm consists of the same partners. In other cases, all partners must sign See Chapter XXI.
Any person of sufficient understanding can act as an agent, but an agent is liable only in so far as he/she him/herself has capacity. There can be joint agents but all must sign documents.
Minors can act as agents but the consent of the parent or guardian is required to the minor entering into the contract.
Woman Married in Community
A Woman married in community of property can act as an agent.
They can act in so far as they understand the transaction (Pienaar v Pienaar’s Curator, 1930 O.P.D. 171, at p. 174), since there is no status of insanity.
If it does not amount to trading, there seems to be no reason against an insolvent acting as an agent (see McKenzie v Flight, 1922 T.P.D. 407). In this case a sub-agent’s estate was sequestrated and he obtained his trustee’s consent to trade. It was held that the insolvency did not affect his agency and having obtained the leave of his trustee to trade he was entitled to earn his commission for himself. If the contract of agency amounts to trading, he must obtain the written consent front his trustee (section 23(3) of Act 24 of 1936).
It is the practice to allow these to act as agents but a nominee would have to be appointed. The constitution must give the body power to act as an agent.
A partnership is not a legal persona and cannot be itself appointed. The partners can be but the agency would lapse on dissolution of the partnership unless the power clearly indicates that the partners as individuals are also appointed.
PROOF OF AGENCY
Agency is generally proved by a power of attorney, either special or general. The Registrar has power under section 4(1)(a) to call for proof of agency and under regulation 65(1) the original power of attorney must be filed.
Original powers need not be filed where a copy is issued by another Registrar (regulation 65(6) or by a Registrar or a Master of the High Court, (regulation 65(10)).
With regard to notarial deeds, it is still accepted, although the Act makes no distinction, that the Registrar cannot query the authority of any agent appearing before a notary, as this is the responsibility of the notary (Transvaal Land Co. v Registrar of Deeds, 1909 T.S. 759; Ex parte Bullard et Uxor, 1937 T.P.D. 297) except in cases where the principal has exceeded his/her authority, for example where a guardian has granted a long lease without the sanction of the Court (Breytenbach v Frankel and Another, 1913 A.D. 390). The power of attorney itself is filed in the notaries protocol.
REGISTRATION OF POWERS OF ATTORNEY AND THE FORMALITIES
Section 3(u) makes provision for registration of three types of powers:
- General powers of attorney
- Powers of attorney to carry out a series of transactions, for example where A appoints B to sell erven in a township and transfer them.
- Copies of the two above issued for use in a registry by another Registrar under regulation 65(6) to (9). Special powers of attorney which lapse on the completion of a single act, for example, powers of attorney to transfer, are not registered.
The following are formalities regarding powers of attorney:
- Preparation Clause. Must be prepared by a conveyancer, alternatively by a notary or attorney and countersigned by a conveyancer (regulation 44).
- Names and Identification. Full names must be given (regulation 24(1)) and no alias is permitted (regulation 24(2)). Status and identity must, where necessary, be disclosed (section 17(1) and regulations 18 and 24(1) of the DRA.
- Execution. The grantor signs his/her usual signature at the bottom of the right hand side of the last page. The following have been held to constitute a signature: mark (Re le Roux, 3 S.C. 56). If the person is blind or deaf or dumb then precautions such as a certificate by a notary or a commissioner of oaths should be observed. Where there is doubt about the validity of the signature, a Registrar can ask the Courts for confirmation (In re C. Morck, 22 N.L.R. 258). The date and place of execution must be disclosed, the latter defined sufficiently to indicate that no authentication is required (regulation 65(2)), that is that the contract was not executed outside the Republic of South Africa.
- Witnesses. Section 95(1) provides that powers of attorney executed in the Republic shall be attested either by two witnesses of more than fourteen years of age who are competent to give evidence in a Court of law, or by a magistrate, justice of the peace, notary public or Commissioner of Oaths. (It is difficult to understand why the first three categories are mentioned since they are all commissioners of oaths ex officio). Powers of attorney executed outside the Republic merely have to be authenticated in accordance with the rules of authentication and additional witnesses are unnecessary. This section is directory only (Sutter v Scheepers, 1932 A.D. 165 at p. 174), but the Registrar is entitled to refuse to act on a power which ex facie the document does not meet the requirements of the section. Generally all witnesses are presumed competent until the contrary is proved (Ramsamy v de Chazal, 35 N.L.R. 171 at p. 175).
The following are incompetent witnesses to a power of attorney:
- the agent;
- a person deriving a benefit. Thus where witnesses were holders of a bond cancelled simultaneously with transfer the power of attorney to pass transfer was held not to have been validly witnessed (Ex parte Gordon, 1927 C.P.D. 314).
It is accepted that a person who receives an indirect benefit only, for example the preparing conveyancer or a partner of the agent can attest. The benefit must be apparent from the document itself.
Head of Deeds Training