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[2020] ZASCA 132
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Smit and Others v Origize 166 Strand Real Estate (Pty) Ltd and Others (710/19) [2020] ZASCA 132 (19 October 2020)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 710/19
In
the matter between:
SYBRAND
SMIT FIRST
APPELLANT
SOLJE SUSAN SMIT
NO
SECOND APPELLANT
ENID ELIZABETH MULDER
NO
THIRD APPELLANT
SYBRAND SMIT
NO
FOURTH APPELLANT
(SECOND TO FOURTH APPELLANTS
AS TRUSTEES OF THE SYBRAND SMIT
FAMILIE TRUST)
and
ORIGIZE 166 STRAND REAL ESTATE
(PTY)
LTD
FIRST RESPONDENT
O’NEIL BRENDAL
JACOBS
SECOND RESPONDENT
HANRO ERASMUS
STEFFEN
THIRD RESPONDENT
Neutral
citation:
Smit
and Others v Origize 166 Strand Real Estate (Pty) Ltd and Others
(Case no 710/19)
[2020] ZASCA 132
(19 October 2020)
Coram:
PETSE DP, MAKGOKA and NICHOLLS JJA
and LEDWABA and EKSTEEN AJJA
Heard
:
25 August 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties' representatives via email, publication on the Supreme
Court
of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 10h00 on 19 October 2020.
Summary:
Principal and agent
– power of attorney granted by company to secure a debt owed to
the grantee – Power of attorney
given as security for a debt
owed is irrevocable for as long as the debt remains unpaid –
purported revocation of power of
attorney invalid.
ORDER
On
appeal from:
Western
Cape Division of the High Court, Cape Town (Bridgman AJ sitting as
court of first instance):
1 The appeal is upheld with costs, including the costs
of two counsel.
2 The order of the high court is set aside and replaced
with the following:
‘
1 It is declared that the
first applicant may, in terms of the resolution adopted by the first
respondent on 21 July 2016:
1.1 Accept and sign on behalf of the
first respondent any written offer from an offeror; and
1.2 Sign on behalf of the first
respondent all documents required to give effect to the
abovementioned written offer and to transfer
to the offeror:
The real right of extension in
respect of 33 units of the scheme known as Ocean View Villas, held
under certificate of real right
number SK1206/2017 (the real rights).
1.3 The first and second respondents
shall pay the costs of the application, jointly and severally.’
JUDGMENT
Eksteen
AJA (Petse DP,
Makgoka
and Nicholls JJA and
Ledwaba AJA
concurring)
[1]
The issue in this appeal relates to the interpretation, enforcement
and revocability of two powers of attorney granted to Mr
Sybrand
Smit, the first appellant, by Origize 166 Strand Real Estate (Pty)
Limited (Origize), the first respondent, pursuant to
two company
resolutions marked ‘irrevocable’. Relying on these
resolutions the appellants sought an order authorising
Mr Smit
to sign any written offer from any offeror and all documents required
to give effect to the offer, on behalf of Origize,
and to transfer to
the offeror the real right of extension in respect of 33 units in the
scheme known as Ocean View Villas (the
sectional scheme), held under
certificate of real right number SK1206/217 (the real rights). The
application was dismissed in the
Western Cape Division of the High
Court, Cape Town (the high court). The appeal to this court is with
the leave of the high court.
[2]
In order to understand the dispute it is necessary to set out briefly
the material history thereof. Mr Smit, an attorney, and
Mr Jacobs, an
estate agent, had been business associates. During 2016, Mr Jacobs
purchased the real rights in the sectional scheme,
which is situated
in Port Edward, KwaZulu-Natal, from the liquidators of CLA Projects
(Pty) Ltd for R4.1 million in the name
of Origize. Mr Jacobs was
the sole shareholder and director in Origize and he paid the deposit
of R410 000 immediately upon
signature of the agreement. Origize
was required to provide guarantees for the remainder of the purchase
price within a stipulated
period. When it was unable to do so the
liquidators threatened to cancel the contract. This prompted Mr
Jacobs to approach Mr Smit
for assistance. He advised Mr Smit
that he had purchased 33 sectional title units and that he had
already secured a buyer who would
purchase the units from him
immediately for R9.5 million. It was accordingly imperative to
ward off the threatened cancellation.
[3]
They agreed that Mr Smit would engage with the liquidators to stave
off the cancellation and, if necessary, to arrange that
the remainder
of the purchase price be paid by a further R1 million in cash,
payable immediately, in exchange for an extension
of time to provide
guarantees in respect of the outstanding balance. They further agreed
that Mr Smit would advance the R1 million
to Origize and in
exchange he would be entitled to share equally with Origize in the
profits upon the sale of the units.
[4]
Mr Smit duly engaged with the liquidators and secured the agreement
as set out earlier on condition that the further R1 million
would be
non refundable in the event of the contract not proceeding.
[5] Further discussions followed between Mr Smit and Mr
Jacobs through an exchange of text messages. When Mr Smit was
satisfied
that an agreement had been concluded, he prepared a written
document which reflected his understanding of the agreement. The
material
terms of the agreement were recorded as follows:
‘
1.
Smit will lend an advance in the amount of R1 million to the
purchaser, to be paid by Smit to the transfer attorneys on 14 July
2016 as part of payment to the purchase price;
2. The parties will be liable in equal shares for the purchase price,
interest thereon, transfer costs and all other costs and
charges
incurred to acquire the property;
3. The parties will endeavour to nominate a VAT registered enterprise
to acquire transfer of the property in the purchaser’s
stead;
4. The parties agree that the property will be sold with the
intention of realising a profit from the sale thereon and that the
nett proceeds will be divided equally between the parties;
5.
The parties will be liable in equal shares for capital gains tax
levied on the results on sale of the property.’
[6] Mr Smit signed the agreement on 14 July 2016 and
paid the R1 million to the conveyancing attorneys on the same date.
The agreement
was forwarded to Mr Jacobs who signed it on the
following day. However, he unilaterally deleted clause 2 thereof and
in its stead
wrote in by hand at the foot of the agreement the
following:
‘
Please
find amendment to clause 2 of page 1.
The
parties agree that I, Yan (Sybrand Smit) will arrange finance at a
financial institute or a business partner of him. Both parties,
Sybrand Smit and O’Neil Jacobs will be liable for the repayment
of all costs and charges.’ (sic)
[7]
The legal implications of the alteration to the document are not
material for present purposes. Suffice it to record that Mr
Smit was
unpleasantly surprised by the change in the financial arrangement.
Not only had the R1 million already been paid
over to the
conveyancing attorneys but he was now required to raise the remainder
of the purchase price.
[8] On 21 July 2016, Mr Smit was provided with a power
of attorney from Origize as reflected in a resolution of its board of
directors,
being Mr Jacobs as sole director. The material portions
thereof record:
‘
Resolved
irrevocably that:
1. Sybrand Smit
Identity number . . .
is hereby nominated, constituted and appointed with Power of
Substitution to be the lawful Attorney and Agent in the name, place
and stead of this Company –
1.1 To prosecute and/or negotiate and/or settle on behalf of LCA
Projects Development Company and/or its Liquidators and/or legal
representatives, in respect of block 1 in Ocean View Villas:
. . .
1.9 To act on behalf of the company for the completion of the
purchase of Block 1, Ocean View Villas, Port Edward as per the signed
Purchase and Sale agreement entered into with LCA Projects
Development, which shall include any and all activities relating to,
but not limited to, obtaining finance for the remainder of the
purchase price, registration of the property in the name of the
Purchaser, to do any maintenance and improvements to the said
property to get it to a sellable condition, any activities to market
the units and transfer the units to the new owners;
1.10 To be my Attorney and Agent for managing and transacting my
business in THE REPUBLIC OF SOUTH AFRICA AND IN EVERY TERRITORY
OR
COUNTRY ANYWHERE IN THE WORLD;
1.11 With full power and authority for me and in my name and for my
account and benefit;
1.12 And to deal with my immovable property belonging to me with
which I am entitled to deal;
1.13 And to sell my immovable property and in connection with any
sale to make the necessary Declaration as to the truth of the
amount
of the purchase price;
1.14 And to receive and to make and give, as the case may be, the
necessary contracts or acts and deeds of transfer or leases of
and
relating to my immovable or leasehold property in due and customary
form according to the local laws an usages;
1.15 And to sign or execute any Deed or Instrument in writing as
effectually as I might or could do if personally present.’
Notwithstanding
the change in terminology from clause 1.10 onwards it was common
cause during argument before us that these clauses
related to the
property of Origize.
[9]
Mr Smit alleged that the power of attorney was provided to him as
security for the non-refundable R1 million which he had already
advanced and the remainder of the purchase price which he was
required to obtain. This allegation was met by a bald denial but,
there was no attempt to explain what other purpose was intended to be
served by the power of attorney.
[10]
Mr Smit proceeded to raise the outstanding balance of the purchase
price in the form of a loan from Business Partners, South
Africa,
(Business Partners) in the name of the Sybrand Smit Familie Trust. As
a condition for the loan to the trust, Business Partners
insisted on
a power of attorney by Origize in favour of Mr Smit.
Accordingly, on 29 July 2016, a further resolution was taken
by the
board of directors of Origize that repeated the wording set out in
clause 1.9 of the earlier resolution. This was the second
resolution
that the appellants relied on. However, by virtue of the conclusion
to which I have come it is not necessary to have
further regard to
this resolution. I shall therefor confine myself to the first
resolution.
[11]
With the finances in place the transfer of the real rights to Origize
was secured. However, the alleged buyer referred to earlier
did not
materialize and the endeavours of the parties to find a willing and
able buyer at a similar price were unsuccessful. In
due course
Mr Smit secured a buyer willing to purchase at a price of R5.4
million. Mr Jacobs refused this offer. In the interim
the partially
completed units were vandalised causing substantial damage to the
structures with a concomitant reduction in their
market value. In the
damaged state the best offer that they were able to secure was R3.95
million. This too Mr Jacobs declined.
[12]
These events contributed to a deteriorating relationship between the
parties and eventually, on 15 March 2018, Mr Jacobs passed
a further
resolution of Origize which purported to revoke the resolution of 21
July 2016.
[13]
In response the appellants launched the application seeking the
relief set out earlier. The appellants relied primarily on
clauses
1.12-1.15 of the resolution. On their behalf it was contended that
because the resolution was taken, and the power of attorney
given, as
security for the loan to Origize, and Smit was appointed
procurator
in rem suam
as
its agent, the resolution was irrevocable in law.
[14]
The dispute relating to security is more apparent than real. As
recorded earlier, Mr Jacobs offered no contrary explanation
for the
provision of the power of attorney. On behalf of the respondents it
was argued that it was not linked to security as neither
the written
agreement nor the resolution itself refers to security. The argument
is unconvincing. The powers conferred on Mr Smit
are far-reaching. In
view of the timing thereof and the circumstances under which it was
given, and in the absence of any other
explanation from Mr Jacobs,
the high court correctly found that it was given as security for the
money already advanced,
and still to be advanced.
[15]
That brings me to the central issue in the appeal, whether the
resolution was revocable and, if not, whether the relief sought
was
justified by virtue of the terms thereof. In respect of the former,
the high court concluded that a power of attorney authorising
another
to act on one’s behalf can, in law, never be irrevocable. It
relied on a passage in
Lawsa
.
[1]
The essence thereof is summarised in the final paragraph, quoted by
the high court:
‘
The
position then can be summed up as follows: according to Roman-Dutch
law, an authority to another person to conclude juristic
acts in
one’s name or on one’s behalf could not be irrevocable;
the exception mentioned by Voet
[2]
is apparent and not real, as Voet refers to a cessionary and not to a
representative who acts on behalf of another person; the
so-called
authority coupled with an interest or forming part of a security is
nothing but a cession; cases in which it is suggested
that an
authority can be irrevocable so as to render valid a juristic act
concluded by a person purporting to act on behalf of
another person
after the other person had revoked his or her authority cannot be
regarded as authoritative.’
[16]
The view expressed in
Lawsa
is not universally held. Thus,
The
Law of Agency in South Africa
[3]
(Silke) records the current position in South Africa as follows:
‘
A
principal may at any time terminate the authority he has conferred on
his agent, whether the agent has commenced to act on it
or not, and
whether or not it has been expressly or impliedly agreed that the
authority will be irrevocable, unless
(a) it was granted for the purpose of protecting or securing some
interest of the agent;
(b) it forms one of the terms of a contract between the parties;
(c) it was given to secure the performance of the
promise made by the principal to the agent.’
[17]
The Law of Agency
[4]
(Kerr) recognises the general rule that authority given to another
may be revoked at any time and that the mere agreement by the
parties
that a power granted by the one to the other or a mandate given by
the one to the other shall be ‘irrevocable’
or ‘
in
rem suam
’
does not deprive the grantor or the mandator of his power to revoke.
The author then proceeds to opine:
‘
However,
grants of power and mandates which are given to enable the grantee or
mandatary to obtain security are not revocable by
the grantor or
mandator while the debt sought to be secured is unpaid.’
[5]
[18]
Lawsa
argues that the statement by Voet (17.1.17) has long been
misunderstood and misapplied. Indeed, it would appear as if, and I
accept
for purposes of this judgement that the exception to the
general rule (the exception), alluded to by Kerr, was not part of the
Roman-Dutch law and that it has its origin in English law.
[6]
However, the exception, which lies at the heart of the contentions by
Silke and Kerr, has a long history in reported case law in
South
Africa.
[19] The first reference thereto was in
Koch v Mair
(1894) 11 SC 71
at 83, wherein De Villiers CJ stated:
‘
There
can be no doubt, that by our law a principal may effectually bind
himself by contract not to revoke his power. Such a contract
would be
implied where the power is given to secure the performance of a
promise made by the agent for valuable consideration,
whether the
power on the face of it purports to be irrevocable or not.’
De
Villiers CJ did not cite any authority for his assertion.
[20] It arose again in
Marcus’ Executor v
Mackie Dunn & Co
(1896-1897) 11 EDC 29
where Solomon J, after
analysing a number of English decisions concluded:
‘
The
effect then of the English decisions is that the principle that an
authority coupled with an interest is irrevocable, applies
only to
those cases where the authority is given for the purpose of being a
security, or as part of the security. The same rule
prevails in our
law; it is laid down in Burge’s “Colonial Law” in
words identical with those quoted above, “(A
mandate)
terminates when the mandant himself revokes the authority. But this
rule admits of an exception when the mandate forms
part of a security
for a debt” (Burge’s Comment,’ Juta’s
edition, p. 282, and Voet 17.1.17, there quoted).’
[21]
Lawsa
argues, however, that Solomon J simply accepted, on the authority of
Burge, that the exception forms part of our law. Burge, it
is argued,
relies on Voet, who deals with the
procuratio
in rem suam
, or
cession, and not with the power of attorney to sell things belonging
to another person. This criticism may be accepted for
purposes of the
debate. The significance of the statement by Soloman J, as I shall
show, lies in the acceptance of the exception
and its consistent
application in our courts.
[22] In
Van Niekerk v Van Noorden
(1900) 17 SC
63
, the plaintiffs had conferred a wide authority on the defendant
which was given ‘specially, irrevocably and
in rem suam
’
as security for a loan advanced. De Villiers CJ, at 65, remarked:
‘
It
appears to me an important point on the case that this power was
given for the protection of the defendant. He was going to some
risk
in assisting the plaintiffs, and in consideration of that risk he
wished to hold control of this business for so long as the
debt was
still owing to him, and it was for that purpose that the irrevocable
power was given.’
He
went on to conclude at 66:
‘
There
has been a great deal of argument as to whether this power is
revocable or not, but my idea is that it is revocable to this
extent,
that the plaintiffs could at any time by paying the whole amount of
the debt due to the defendant claim that the power
given should be
revoked, but so long as the debt remains it is really irrevocable.’
[23]
Natal Bank Ltd v Natorp and Registrar of Deeds
1908 TS 1016
followed. There, Natorp had given the bank an
‘irrevocable’ power of attorney which entitled it to pass
a bond of £7 000
over certain property named therein. It
was clear from the terms of the power of attorney that it was given
in connection with
a debt due by Natorp to the bank ‘arising
from and being for money lent and advanced or to be lent and advanced
by the said
bank to Natorp and Ireland, merchants,
Pietersburg’. On 4 October 1908 Natorp purported to revoke the
power by notice
to the bank. A few days thereafter the bank proceeded
to act on the power but the Registrar of Deeds, who had been notified
of
the purported revocation, rejected the bond. However, the court
ordered that the power of attorney be treated as binding. Solomon
J
stated at 1019-1022:
‘
The
object of the transaction was that Natorp should give security to the
bank for this overdraft, or for any overdraft which might
become due
in the future from the firm of Natorp & Ireland. The transaction
. . . is a comparatively common banking transaction
between a
customer and a bank, under which certain facilities are given to the
customer, and he in turn grants a power of this
nature as security,
to be retained by the bank and acted upon by it when it thinks
necessary . . . [I]n the circumstances . . .
the power cannot be
revoked until the firm [Natorp and Ireland] have discharged their
liabilities to the bank.’
[24]
The position expounded by Voet (17.1.17), that there must be a
cession of action before the authority can be deemed to be
irrevocable, was advanced. The argument was considered and
rejected,
[7]
whether rightly or wrongly. Natal Bank was followed in
Hunt,
Leuchars and Hepburn Ltd: In Re Jeansson
(1911)
32 NPD 493.
In
Hunt
,
Jeansson had borrowed money from Hunt, Leuchars and Hepburn and given
them an irrevocable power of attorney to let, sell, acquire,
mortgage, manage, and generally to administer: a certain piece of
land. After Jeansson’s death Hunt Leuchars and Hepburn
approached the court for leave to act upon the power of attorney.
Leave was granted on the ground that the power, having been given
as
security, was irrevocable and did therefore not terminate at
Jeansson’s death.
[25]
Glover v Bothma
1948 (1) SA 611
(WLD) was next. Roper J considered the argument based
on Voet 17.1.17.
[8]
He concluded:
‘The
effect of the rule as stated by
Voet
appears to be
substantially the same as that of the English rule that an agency
cannot be revoked where it is coupled with an interest.
The
following passage occurs in Wille and Millin's
Mercantile Law of
S.A
. (11th Ed., p. 362):
“An
authority coupled with an interest is one given for the purpose of
protecting or securing any interest of the agent. Such
an authority
or power is usually styled ‘irrevocable’ in the
instrument conferring it, and it often takes the form
of what is
called a procuratorship
in rem suam
, i.e., an agency in which
the agent is given authority to sue in his own name and in which he
transacts the business committed
to him for his own benefit and not
for the benefit of the principal. In a case of this sort, as well as
in every other case where
the power has been given by way of
security, irrevocability will be implied, even if the power is not
express on the point. On
the other hand, merely to call a power
‘irrevocable’ is not to make it so. Subject to an action
for damages an ordinary
power styled irrevocable may be revoked . . .
The test is whether it is intended for the protection or securing of
an interest
of the agent. If it is, it is irrevocable, until such
time as the protection or security is no longer needed”.’
[26]
Caney J was called upon again to consider the revocability of a power
of attorney in
Ward v Barrett, NO, and Another
1962 (4) SA 732
(NPD). He opined at 737D-E:
‘
Generally,
the authority of an agent is revocable by his principal and
terminates on the death or insolvency of himself or of the
principal.
The question whether a power of attorney or the authority of an agent
howsoever conferred is irrevocable depends, it
seems to me, upon an
interpretation of the transaction into which the principal has
entered with the agent and an application of
the general principles
of law to that transaction. There seems to be no particular magic in
the use of the terms “irrevocable”
or “
procuratio
in rem suam
” or “a power
coupled with an interest”; it is essential to discover
precisely what was the transaction.’
[27] Caney J proceeded to refer to
Natal Bank
and
stated (at 737G-H):
‘
[A]
power of attorney (expressed to be irrevocable) to pass a mortgage
bond was given, not for the purpose of then and there passing
a bond,
but for the bank to hold as security for overdraft facilities and to
be acted upon by the bank when it thought necessary.
The
principal’s attempt to revoke the power would have been,
as INNES, C.J., said of a bond in similar circumstances,
in
National
Bank of SA Ltd v Hoffman's Trustee
,
1923 AD 247
at p. 249, “a fraudulent act which the law could
not countenance”.’
[28]
These decisions, stretching back more than 125 years, set out the
development of our law and the establishment of the principle
that a
power of attorney given as security for a debt owing, is irrevocable,
at least for as long as the debt remains unpaid. The
courts have
repeatedly considered the pronouncement by Voet and have consistently
attributed to it their understanding. I accept
that they may have
misunderstood his teaching, however, as the law has developed in this
country over an extended period the principle
has been firmly laid
down and the time has come to recognise that it is part of our
contemporary law.
[9]
[29]
I have alluded earlier to the case law. Solomon J noted in
Natal
Bank
, in 1908, that
it was common banking practice for a bank to accept a power of
attorney to register a bond if and when so advised,
as security for a
loan. There is no reason to believe that the practice has materially
changed. Vested rights have accrued to parties
reliant on the
enduring principle affirmed in our courts and a ruling now that the
exception has never been part of our law would
have a ripple effect,
with a concomitant impact on existing rights and obligations. For
these reasons I conclude that the resolution
of 21 July 2016 was
irrevocable, at least until the debt secured was repaid, and its
purported revocation is therefore invalid.
[30]
The remaining question is whether the terms of the resolution
entitled the appellants to the order sought. The high court said
not.
It reasoned that it would be wrong to permit Mr Smit to accept ‘any
offer’ as an agent is in law obliged to act
in the best
interest of his principal and he could therefore not accept an offer
of which Mr Jacobs did not approve. The reasoning
does not do justice
to the relationship between the parties. The history of the dispute
demonstrates that they were partners in
a joint venture. Mr Smit has
assumed a substantial financial risk to assist Mr Jacobs and the
power to sell the property was specifically
given to secure this risk
.As a partner sharing in the profit, if any, he has as great an
interest, if not greater, in securing
the highest possible price as
Mr Jacobs has.
[31]
Clauses 1.12-1.15 of the resolution confer extensive powers on
Mr Smit to sell the property, to receive or to make, as
the case
may be, contracts and deeds of transfer relating to the property and
to sign any deed or instrument in writing as effectually
as Mr Jacobs
could. In my view the express terms of the power of attorney confer
on Mr Smit the authority to accept an offer to
purchase and to sign
the deed of sale and all documents necessary to pass transfer to the
purchaser.
[32]
On behalf of the respondents it was argued that the power of attorney
was time bound and once the transaction with the liquidators
had been
completed and transfer of the rights effected the power lapsed. The
argument ignores the provisions of clause 1.9 which
authorises Mr
Smit to do maintenance and effect improvements to the property to get
it to a sellable condition and to undertake
any activities to market
the units and transfer the units to new owners. Moreover, once it is
accepted that the power of attorney
was given as security for the
loan, as I have, it is irrevocable for as long as the debt which it
sought to secure remains unpaid.
The argument can therefore not
succeed.
[33] In the result:
1 The appeal is upheld with costs, including the costs
of two counsel.
2 The order of the high court is set aside and replaced
with the following:
‘
1 It is declared that the
first applicant may, in terms of the resolution adopted by the first
respondent on 21 July 2016:
1.1 Accept and sign on behalf of the
first respondent any written offer from an offeror; and
1.2 Sign on behalf of the first
respondent all documents required to give effect to the
abovementioned written offer and to transfer
to the offeror:
The real right of extension in
respect of 33 units of the scheme known as Ocean View Villas, held
under certificate of real right
number SK1206/2017 (the real rights).
1.3 The first and second respondents
shall pay the costs of the application, jointly and severally.’
_________________________
J W EKSTEEN
ACTING JUDGE OF APPEAL
Appearances
For
appellants: M Seale SC (with him A Walters)
Instructed
by: Smit & CO Attorneys, Lamberts Bay
McIntyre
Van Der Post, Bloemfontein
For
respondent: A Montzinger
Instructed
by: Hanro Steffen Inc, Brackenfell
Symington
& De Kok, Bloemfontein
[1]
Lawsa
3 ed Agency and representation – termination
of authority.
[2]
17.1.17.
[3]
J M Silke
De Villiers and McIntosh:
The Law of Agency in
South Africa
3 ed at 614.
[4]
Kerr
The Law of
Agency
4 ed (2006) at 196-197.
[5]
See also Harms
Amlers
Precedence of Pleadings
9 ed at 28.
[6]
See
Lawsa
.
[7]
At 122-123.
[8]
625-626.
[9]
Cullinan v Noordkaaplandse Aartappelkernmoerkwekers Koöporasie
Bpk
1972 (1) SA 761
(A).