Agency in South Africa: Mapping its defining characteristics

• Author: Glover, G.
• DOI: https://doi.org/10.47348/ACTA/2021/a9
• Published date: 23 August 2021
• Date: 23 August 2021
• Pages: 243-274

243

https://doi.org/10.47348/ACTA/2021/a9

Agency in South Africa:

Mapping its dening characteristics

GRAHA M GLOVER*

This ar ticle draws on contemporary t rends in An glo-Amer ican

jurisd ictions to propose a modernised a nalyt ical fra mework for

agency law in South Africa. It rst investigates the juridical basis

of agency law, nding that the consensus is to see agency as a

complex phenomenon that sy nthesises bot h interna l consent and

external power/liabi lity models. Secondly, the art icle proposes

certai n essential conceptua l features of agency, briey d iscusses these

features, and argues, with reference to comparative author ity, how

adopting these might facilitate a more complete underst anding of

agency in South Africa.

I IN TRODUC TION

Agency may be a ubiquitous commercial practice with a long

history, but it has been an area of law whose conceptua l attributes

or essential characteristics have been the subject of debate, not

only in South Africa, but in other jurisdictions too.1 In the South

African context, part of the reason may be because, in common

with much of modern South A frica’s private-law heritage, South

Africa’s agency law is a hybrid of a variet y of received sources.2

* BA L LB PhD (R hodes); Associa te Professor, Fac ulty of Law, Rho des

Universit y. This art icle is presented i n tribute t o the career of Pro fessor Dale

Hutchison. P rofessors De Wet, Ch ristie, Ker r, Van der Merwe and Lu bbe

may have domi nated South A frica n contract-l aw analys is in the late t wentieth

centur y, but Dale can rig htly be consid ered to have take n over their mant le

of pre-em inence in the  rst two decad es of the twent y-rst, w ith only one

or two others c oming any where close to m atching h is impact on ou r recent

contract ju risprudence. Dale’s contr ibution has been invalu able for its clarity of

expositio n and its inci sive analys is. His idea s have enriche d our underst anding

of South Af rican contr act law, and have paved the way for fresh a nd innovative

think ing about ancient concepts . He was also a g ifted teacher to genera tions of

law student s. I trust t hat his wr iting will cont inue to redound to t he benet of

our legal s ystem for many years to co me.

1 S ee general ly G McMeel ‘The ph ilosophica l foundatio ns of the law of

agency’ (20 00) 116 LQR 38 7.

2 F or more comprehensive d iscussio ns of the histo rical sour ces and their

development, see J Si lke (ed) De Villiers & Macin tosh: The Law of Age ncy in South

2021 Acta Juridica 243

© Juta and Company (Pty) Ltd

244 THE FU TURE OF THE LAW OF CONTR ACT

https://doi.org/10.47348/ACTA/2021/a9

Joubert deftly described South Africa’s law of agency as a casuistic

patchwork combination of ‘the Roman-Dutch law of mandate

and modern Anglo-American principles of commercial agency’.3

Yet this statement should not be taken to suggest there has been

a clear uniformity of approach in South African law about the

essential features and range of application of agency. Although the

important works on agency in South A frican law4 have engaged

this issue, the leading authors have not always found common

ground, and commentators have adm itted that the position in

South African law is by no means f ully or completely theorised.5

Part of the reason for this may be because the main treat ises and

discussions of South Africa’s law of agency were compiled in the

last three d ecades of the twentieth centur y, and no signicant work

has been done in the rst two decades of the twenty-rst century

to take into account a developing uniform ity about the dening

characteristics of agency law that has emerged in the last 20 years,

particu larly in Anglo-Amer ican jurisdictions from which South

African law has traditionally drawn assistance.

Africa 3 ed (1981) 4–13; D Joubert ‘Agency and stipulati o alteri’ in R Zimm ermann

& D Visser (eds) Sou thern Cross: Civil Law and Co mmon Law in South Afri ca (1996)

335–41; R Zimm ermann T he Law of Ob ligations: Roman Foun dations of the

Civilian Tradition (1990) 46.

3 Jou bert (n 2) 341. Some princ iples traci ng their way back t o the Roman-

Dutch law of ma ndate reta in their pres ence in variou s places in Sout h Africa n

agency law. But Sout h Afric a’s agency law took on an i ncreasin gly angl icised

look in the twe ntieth centur y. H Hahlo & E K ahn The South Afr ican Legal System

and its Backg round (1968 ) 578 descr ibe the inuenc e as ‘fai rly strong’. See too

Joubert at 339 . This is not to su ggest tha t South Afr ica subsumed Engli sh law

in its enti rety. For exampl e, South Afr ican law does n ot recognis e the Engli sh

concept of agenc y of necessity, an issue covere d in our jurisdic tion by negotiorum

gestio. Joubert’s refer ence to Anglo -Americ an law is due to the i nuence of

import ant literatur e in that other powerhouse of mo dern commerce, the Uni ted

States, not ably J Story Agency 5 ed (1857) a nd the Americ an Law Institute’s rst

(1933) and second (1958) Restatement of th e Law: Agency.

4 S ee A Kerr The L aw of Agency 4 ed (2 006); De Villie rs & Macintosh (n 2);

‘Agency and repre sentation’ in W Joube rt (foundin g ed) The La w of South

Africa vol 1, origina l edition by JC de Wet (1976) (now revised third ed ition by

M Dendy (2013) to which sub sequent reference w ill be m ade unless o therwi se

indicate d); D Joubert Die Suid-Afrikaanse Verteenwoordigingsreg (1979 ).

5 S ee Joubert (n 2) 336; A Fort e & J van Niekerk ‘Agency’ in R Z immerma nn,

D Visser & K Reid Mi xed Legal Systems in Co mparative Perspec tive: Property a nd

Obligations in S cotland and South Africa (2004) 240.

© Juta and Company (Pty) Ltd