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It was inappropriate to have been asked to interfere with the factual findings by the Trial Court. Vodacom may have been entitled to raise the legal defences it advanced. As a party, it was entitled to have had its day in court and have had those defences adjudicated. That was guaranteed by section 34 of the Constitution on access to courts.
The law considered the parties’ freedom of contract to be sacrosanct and that the parties’ consensus must have been reached freely. The position in the common law was that an agreement to negotiate in good faith was enforceable if it provided for a deadlock-breaking mechanism in the event of the negotiating parties not reaching consensus. Whether an agreement to negotiate in good faith was enforceable where there was no deadlock-breaking mechanism remained a grey area of the South African law.
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However, it was ironic that in pursuit of its constitutional right, Vodacom had invoked legislation from the height of the apartheid era, to prevent the Applicant from exercising the same right. It followed that the Trial Court attached an incorrect meaning to the word debt. A debt contemplated in section 10 of the Prescription Act on extinction of debts by prescription, did not cover the claim. Therefore, the section did not apply to the claim. The Applicant, Mr Kenneth Nkosana Makate, was a former employee of the Respondent, Vodacom Limited .
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It was settled law that ostensible authority where there was no actual authority was a form or instance of estoppel, which was why it was commonly referred to in judgments and textbooks as agency by estoppel. Interference with the factual findings made by the Trial Court was neither necessary nor justified. Ordinarily appeal courts were reluctant to interfere with factual findings made by trial courts, more particularly if the factual findings depended upon the credibility of the witnesses who testified at the trial. Whether the common law on estoppel based on apparent or ostensible authority ought to have been developed in circumstances. Sellers looking to grow their business and reach more interested buyers can use Etsy’s advertising platform to promote their items. You’ll see ad results based on factors like relevancy, and the amount sellers pay per click.
Estoppel was a shield and not a sword. Estoppel served two purposes. It either placed an obstacle in the path of a case that might otherwise have succeeded, or it removed an impediment in the path of a case that might have failed without its removal.
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When the case came to trial in 2013 Vodacom delivered a further very detailed request for further particulars for trial, but did not ask for any further information in regard to the question of ostensible authority. The finding by the Trial Court that ostensible authority was not pleaded, because it had to have been pleaded by way of replication was wrong. There was therefore no reason to say that ostensible authority was not a form of estoppel in order to hold that ostensible authority had properly been raised in the particulars of claim.
The means by which that appearance was represented needed not be directed at any person. In other words the principal needed not make the representation to the person claiming that the agent had apparent authority. Vodacom’s business involved the exploitation of profitable concepts in the telecommunications industry. Where a plaintiff was aware that the defendant would, or would probably, raise a defence of lack of authority, there could be no criticism of them for pleading ostensible authority from the outset, either as an alternative to actual authority, or on its own.
1980's Banana Republic dressActual authority and ostensible or apparent authority were the opposite sides of the same coin. If an agent wished to perform a juristic act on behalf of a principal, the agent required authority to do so for the act to bind the principal. If the principal had conferred the necessary authority either expressly or impliedly, the agent was taken to have actual authority. But if the principal were to deny that she had conferred the authority, the third party who concluded the juristic act with the agent may have pleaded estoppel in replication.
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