The Firs Investment Ltd v Levy Bros Estates (Pty) Ltd

• Jurisdiction: South Africa
• Citation: 1984 (2) SA 881 (A)

The Firs Investment Ltd v Levy Bros Estates (Pty) Ltd
1984 (2) SA 881 (A)

1984 (2) SA p881

Citation	1984 (2) SA 881 (A)
Court	Appellate Division
Judge	Rabie CJ, Kotzé JA, Joubert JA, Trengove JA and Smuts AJA
Heard	February 28, 1984
Judgment	March 22, 1984

Flynote : Sleutelwoorde D

Principal and agent — Estate agent — Commission — Claim for payment of commission where agent given "sole irrevocable authority" for a specified period to sell property E — Owner deciding within the period of mandate not to sell although agent had found a purchaser — By giving such authority owner deprives himself of right to sell property during period of mandate — Owner's decision not to sell property tantamount to revocation of mandate — Agent F accordingly entitled to commission.

Headnote : Kopnota

The appellant, the owner of a shopping centre, had given to the respondent, a firm of estate agents, "the sole irrevocable authority expiring on 20 June 1980 to effect the sale" of the shopping centre on certain terms and conditions. Within the period of its mandate the respondent found a purchaser who was prepared to buy the property on the terms and conditions laid down by the appellant. Before a deed of sale was drawn up, the G appellant decided not to sell and withdrew the respondent's mandate. The respondent succeeded in an action in a Local Division for payment of damages for the wrongful revocation of its mandate. It was contended by appellant on appeal that the words "sole and irrevocable authority" were not to be equated with the sole right or power to dispose of the property as against the appellant itself but should be construed as being H no more than an undertaking by the appellant not to appoint anyone else to find a purchaser during the specified period.

Held, that the agreement between the appellant and the respondent was a composite one in that it comprised a mandate to the respondent to find a purchaser coupled with an authority to enter into a contract of sale on the appellant's behalf: the respondent was given the exclusive right or power to effect the sale of the property and the appellant in effect deprived itself of the right to sell the property or to appoint anyone else to do so during the specified period.

1984 (2) SA p882

Held, accordingly, that the appellant's decision not to sell the property was tantamount to a repudiation, or a revocation, of the mandate and the respondent was entitled to his commission as damages. The appeal was dismissed.

The decision in the Witwatersrand Local Division in Levy Bros Estates (Pty) Ltd v The Firs Investments Ltd and Another confirmed. A

Case Information

Appeal from a decision in the Witwatersrand Local Division (F S STEYN J). The facts appear from the judgment of TRENGOVE JA.

I A Maisels QC (with him A M Gottlieb) for the appellant referred to the following authorities: Mackenzie v Flight 1922 B TPD 407; Luxor (Eastbourne) Ltd (In Liquidation) and Others v Cooper [1941] 1 All ER 33; Gluckman v Landau & Co 1944 TPD 261; Christie Owen & Davies v Rapacioli [1974] 2 All ER 311; Alpha Trading Ltd v Dunnshaw-Patten Ltd [1981] 1 All ER 482; De Villiers and Macintosh The Law of Agency in South Africa 3rd ed at 411; Bundshuh v Finnegan 1975 (1) SA 376; Ward v Barrett NO C and Another 1962 (4) SA 732; Glover v Bothma 1948 (1) SA 611; De Coning v Monror Estate and Investment Co (Pty) Ltd 1974 (3) SA 72; Munro v Madeira Property Agents and Auctioneers (Pty) Ltd 1965 (1) PH A23; Pretorius v Erasmus 1975 (2) SA 765; Kerr 1976 SALJ 10; Scott and Another v Poupard and Another 1971 (2) SA 373.

A W Mostert SC (with him S F Burger) for the respondent referred to the following authorities: Guest & Tanner (Pvt) Ltd v Godden 1962 (1) PH K13; MacDonald v Boulding 1921 WLD 124; Frascati Café v Exchange Property Co 1922 CPD 459; McCullough and Whitehead v Whiteaway and Co 1914 AD 599; Cape Dairy and General Livestock Auctioneers v Badenhorst 1937 TPD at 287; E Pretorius v Erasmus 1975 (2) SA at 770A - in fine; Ward v Barrett NO and Another 1962 (4) SA at 738A - G; Van der Merwe v Ras 1912 TPD at 102; Price Bros & Barnes Ltd v Snyman 1936 TPD 332; De Wet and Yeats Kontraktereg en Handelsreg 4th ed at F 86, 99, 340 and 341; Joubert Die Suid-Afrikaanse Verteenwoordigingsreg. D

Cur adv vult.

Postea (March 22).

Judgment

Trengove JA:

The appellant is the owner of a shopping centre in Rosebank, Johannesburg, known as "The Firs". The respondent carries on business as a firm of estate agents. The respondent instituted an action against the appellant in the Witwatersrand Local Division for payment of R195 750 as damages for the alleged wrongful revocation of a mandate granting the H respondent "the sole irrevocable authority expiring on 30 June 1980 to effect the sale" of "The Firs" on certain terms and conditions which were embodied in a letter dated 5 December 1979, to which I shall presently refer more fully. When the case came to trial, it was common cause that the appellant had granted the respondent the mandate in question, but had withdrawn it before the date of expiry. The only issue before the trial Court (and also before this Court) was whether the appellant's revocation of the mandate constituted a breach of contract in respect of which the respondent

1984 (2) SA p883

Trengove JA

was entitled to claim damages. The trial Judge, F S STEYN J, decided this issue in favour of the respondent (plaintiff) and he accordingly gave judgment for the respondent as prayed, with costs; hence this appeal.

The facts are very simple. During or about September 1979 the A appellant considered selling "The Firs" and it authorised the respondent to enter into negotiations with the Electricity Supply Commission Pension and Provident Fund (the Fund) which appeared to be interested in acquiring this property for investment purposes. On 5 December 1979 the appellant and the respondent entered into an agreement, the terms of which were B embodied in the letter of 5 December 1979, to which I have already referred. The letter reads as follows:

"Authority to sell

Messrs Levy Brothers Estates (Pty) Ltd

12th Floor, North State C Cnr Market & Kruis Streets

Johannesburg

Dear Sirs,

The Firs Investments Ltd, herein represented by Aron Aronovsky, chairman of the company, who is duly authorised by the company ('the seller') - does hereby grant you the sole irrevocable authority expiring on 30 June 1980 to effect the sale of lot 192, Rosebank, on which is erected the building known as 'The Firs' (hereinafter referred to as 'the property'), on the terms D and conditions hereinafter set...