Distinguishing apparent authority from agency by estoppel : a commentary on the decision of Makate v Vodacom (Pty) Ltd [2016] ZACC 13

• Pages: 177-190
• Author: L.L. Ramokanate
• Published date: 01 January 2016
• Date: 01 January 2016
• DOI: 10.10520/EJC196788

DISTINGUISHING APPARENT AUTHORITY FROM AGENCY

BY ESTOPPEL: A COMMENTARY ON THE DECISION OF

MAKATE V VODACOM (PTY) LTD [2016] ZACC 13

Ramokanate, L.L.

Abstract

It has always been accepted as the correct position of the law

of agency that in order to hold a principal liable on the basis of

the apparent authority of his agent, the third party seeking to

bind the principal must prove the necessary elements of

estoppel at common law. Under this approach, the law does

not acknowledge any difference between apparent authority

and agency by estoppel, wherefore it is commonly said that

apparent authority gives rise to agency by estoppel. This

position has been reversed by the recent decision of the

Constitutional Court of South Africa in the matter of Makate

v Vodacom (Pty) Ltd [2016] ZACC 13. The gist of this

decision is that apparent authority is distinguishable, separate

and independent from agency by estoppel. Therefore, the new

position of the law is that principals can be held liable on the

basis of apparent authority without third parties being

required to go a mile further to satisfy the elements of

estoppel. The aim of this paper is to critically analyse this

decision, with specific focus on the veracity of its holding, and

the effect of its precedent on the law of agency.

Introduction

Before the decision of the Constitutional Court in Makate v Vodacom

(Pty) Ltd,1 it was accepted to be the correct position of the law that

* LLD Candidate in Trade and Business Law at North-West University

(Potchefstroom Campus), ramokanatel@gmail.com.

1 [2016] ZACC 13.