INTRODUCTION

125 Scope of this title The expression "agency" is used in such a wide variety of meanings that it cannot be
regarded as a term of art denoting a specific branch of law.1
One of the meanings in which the expression is employed is that of an agreement in terms of which one person,
called the agent, performs some task for another person, called the principal, in connection with a juristic act by or
for the principal. In this meaning "agency" is simply a contract by which the principal and the agent create rights
and obligations inter se. It belongs to the category of contracts known as mandate or mandatum in Roman-Dutch
law.2 Even if the task to be performed by the agent is the conclusion of a juristic act on behalf of or in the name of
the principal, the contract remains a contract of mandate governed by the rules applicable to contracts of mandate
in general.
"Agency" is also used to denote the phenomenon of one person, called the agent, concluding a juristic act on
behalf of or in the name of another person, called the principal.3 In this meaning "agency" is an instance of
representation. It has been suggested that "agency" in the meaning of representation is confined to
representation of a person who is competent to act for him- or herself.4 According to this view, guardians and
curators who conclude juristic acts on behalf of their wards and directors of companies and members of boards of
corporations cannot be regarded as agents. It is admittedly unusual to speak of a guardian or a curator as an
"agent" of the ward, but directors of companies are commonly called "agents" of the companies on whose behalf
they act.5 In any event, it does not really matter whether representatives who act on behalf of persons
incompetent to act for themselves are called agents or not. The important point is that agents who act on behalf of
other people act as representatives, and that the rules relating to representation apply to agency in the meaning of
representation.
The term "agency", moreover, is sometimes used to refer, on the one hand, to a contractual relationship
between the principal and the agent and, on the other hand, to the capacity of the agent to represent the principal.
The agent's authority is not simply one of the rights or obligations arising from the contract, but is a capacity
derived from an act of authorisation. That capacity may in appropriate circumstances be inferred from a contract of
agency, but it is nevertheless distinct from the contract of agency itself, should such a contract exist. So, for
instance, a valid contract can be concluded orally between two persons in terms of which one undertakes to buy a
piece of land on behalf of the other, but this contract does not by itself clothe the agent with the legal capacity to
create a binding contract between his or her principal and the seller of the land. In order to bind the principal to the
seller and the seller to the principal, the agent has to be authorised in writing, in terms of the Alienation of Land
Act.6 As far as the seller is concerned, the terms of the oral contract between the principal and the agent are
irrelevant. He or she is affected only by the terms of the written authorisation. Until a written authorisation
complying with the Alienation of Land Act is in existence, the agent lacks the legal capacity to bind the principal as a
purchaser of the piece of land in question.
1 See Truter, Crous, Wiggill & Vos v Udwin 1981 3 All SA 46 (T); 1981 4 SA 68 (T). In this title only
agency (in the sense of representation) and representation are considered. The contract of agency is
dealt with in the title MANDATE AND NEGOTIORUM GESTIO.
2 See Totalisator Agency Board, OFS v Livanos 1987 3 All SA 192 (W); 1987 3 SA 283 (W) 291-294. In
Afrikaans the contract mandate or mandatum is known as lasgewing.
3 See Joel Melamed & Hurwitz v Cleveland Estates (Pty) Ltd, Joel Melamed & Hurwitz v Vorner
Investments (Pty) Ltd 1984 2 All SA 110 (A); 1984 3 SA 155 (A) 166C-D.
4 See De Villiers and Macintosh Agency 2 relying on Potchefstroom Dairies & Industries Co Ltd v
Standard Fresh Milk Supply Co 1913 TPD 506 511 513 and SA Sentrale Koöperatiewe Graanmpy Bpk v
Thanasaris 1953 2 All SA 195 (W); 1953 2 SA 314 (W) 317. These decisions and dicta do not constitute
cogent authority for the proposition stated by the learned authors.
5 See Cilliers and Benade Maatskappyereg 298 and cf Robinson v Randfontein Estates Gold Mining Co
Ltd 1921 AD 168 178; Uitenhage Municipality v Uys 1974 2 All SA 231 (E); 1974 3 SA 800 (E) 807.
6 68 of 1981s 2(1). For a discussion of this provision, see par 143 post.

126 The concept of representation Representation is the phenomenon whereby one person concludes a juristic
act on behalf of another person. A juristic act is an act whereby legal relationships are created, altered or
extinguished by means of an expression of will by one person or expressions of a common will by two or more
persons.1 A unilateral juristic act can come into being by an expression of will by one person, for instance by notice
of cancellation, and a multilateral juristic act requires expressions of will by two or more persons, for instance a
contract. In a situation of representation, the juristic act is concluded by an expression of his or her will by the
representative to create, alter or extinguish legal relationships, not for him- or herself, but for another person. Thus
in a contract concluded by one person as representative of another person, the rights and obligations arising from
the contract inure to the person represented and not to the representative. The contract comes into being by the
expression of will of the representative, but the rights and obligations arising out of the contract are the principal's
and not the agent's.2 Of course, this does not exclude the possibility of a person acting both for him- or herself and
on behalf of another person in the conclusion of a juristic act. Smith and Jones can, as joint purchasers, buy a
painting from Brown, but instead of concluding the contract in person Smith can authorise Jones to act as his or her
representative, in which event Smith will acquire the same rights and incur the same obligation vis-à-vis Brown as
he or she would have acquired or incurred had he or she acted in person.3
1 The expression "juristic act" is not in common use in South African legal literature written in English,
nor does it seem to be a term of art in English law. In civilian legal systems it has been a well-
established concept since the beginning of the 19th century. In Afrikaans regshandeling i s a n
established term. Hahlo and Kahn SA Legal System 100 seem to prefer "act in law" to "juristic act". In
Potter v Rand Townships Registrar 1945 AD 277 287 "juristic act" is used to denote "an act giving rise
 to jural relations".
2 See Logan v Read & Ash (1892) 9 SC 514; Fairbairn v Pepper (1904) 21 SC 154; Schmidt v Barnardo
(1906) 23 SC 447; Blower v Van Noorden 1909 TS 890 897 898; Freemantle v McKenzie 1915 CPD
568; Hofmeyr & Son v Luyt 1921 CPD 831; Howard's Debt Collecting Agency v Haarhoff 1925 TPD
272; SWA Amalgameerde Afslaers (Edms) Bpk v Louw 1956 1 All SA 293 (A); 1956 1 SA 346 (A);
Ncqula v Muller's Book Shop 1960 4 All SA 218 (E); 1960 4 SA 300 (E); Marias v Perks 1963 4 All SA
662 (E); 1963 4 SA 802 (E); Nordis Construction Co (Pty) Ltd v Theron, Burke & Isaac 1972 2 All SA
261 (D); 1972 2 SA 535 (D); Terblanche v Nothnagel 1975 4 All SA 411 (C); 1975 4 SA 405 (C);
Truter, Crous, Wiggill & Vos v Udwin 1981 3 All SA 46 (T); 1981 4 SA 68 (T). See Coberg Television
Services (Pty) Ltd v Cooperman 1981 4 All SA 201 (W); 1981 3 SA 919 (W) for the situation where the
agent uses an invented name for a business conducted by him- or herself. He or she is then bound by
a contract which he or she purports to enter into as an agent for the business, since he or she is the
true principal.
3 Steenkamp v Webster 1955 2 All SA 147 (A); 1955 1 SA 524 (A) does not deal with such a position but
with two juristic acts incorporated in one document. The appellant as the agent of a company bought
something from the respondent and bound himself to the respondent as surety for the payment of the
purchase price. Both contracts were contained in one document which carried only one signature by
the appellant. It was held that one signature was sufficient. The reasoning is unclear and the decision
is unconvincing. It was followed in Visser v Van Tonder 1986 3 All SA 423 (T); 1986 2 SA 500 (T).

127 Representation and the contract in favour of a third person A contract concluded by a representative on
behalf of another person has to be distinguished from the contract in favour of a third person, which is sometimes
inaccurately called stipulatio alteri.1 In the former, the contracting persons intend to create rights and obligations for
the person who is represented and not for the representative. In the latter, one of the contracting parties, the
promissory, binds him- or herself to the other person, the stipulator, to be bound to a third person. The stipulator
does not contract in the name of the third person but intends to bind the other party to him- or herself and to
confer a right on the third person which the latter can accept or reject.2 As the stipulator does not contract as
representative of the third person, such third person does not have to be in existence when the contract is
concluded.3 Thus, a valid contract can be concluded in favour of a person not yet born4 or a company not yet in
existence.5
There is a good deal of confusion which tends to blur the distinction between a contract in favour of a third
person and a contract concluded by a representative, particularly a person acting as a representative but without
authority. If one person concludes a contract on behalf of another person without authority to do so, the purported
principal does not acquire any right or incur any obligation under the contract. However, he or she can ratify the
would-be agent's act. Ratification places the principal in the position in which he or she would have been if the
agent had had authority at the time when he or she concluded the contract.6 The stipulator in a contract in favour
of a third person does not represent the third person, so there is no question of ratification. The third person either
accepts or rejects the right stipulated for him or her. By accepting the right, the third person does not ratify or even
adopt the contract; the contract remains a contract between the stipulator and the promissory in terms of which the
right is conferred on the third person. The third person simply accepts that right.7
The right stipulated in favour of the third person can be any type of right, including an option binding the
promissory, for instance an option to buy a piece of land. If the third person accepts the right, then he or she is
entitled to exercise the option, and if he or she exercises the option, then a contract comes into being between the
promissory and the third person. This contract is obviously not the contract in favour of a third person originally
concluded between the stipulator and the promissory but an entirely new contract.8
Similar to contracts in favour of a person not yet in existence, contracts in favour of companies not yet
incorporated can be of infinite variety. The contract usually construed as a contract in favour of a third person is one
in terms of which a person describing him- or herself as "trustee" of a company to be formed concludes a contract
with another "for and on behalf of the company" to be formed.9 Although these expressions are more appropriate
to agency than to contracts in favour of third persons,10 the courts tend to construe such contracts as contracts in
favour of third persons. If a contract of this nature is to be construed as a contract in favour of a third person, it can
only be a contract in which an option is stipulated in favour of the company which the company can in due course
accept. If, after accepting the benefit, the company exercises the option, a contract comes into being between the
company and the promissory.11 This is, however, not the way in which these contracts are usually construed by the
courts. The usual construction is that the company "adopts" or "ratifies" the contract concluded by the stipulator,
thereby becoming a party to the contract.12 "Adoption" and "ratification" are concepts which do not fit into the
context of the contract in favour of a third person13 and the construction that the original contract is adopted by
the company, which then displaces the stipulator as a party to such a contract, conflicts with the very essence of
the contract in favour of a third person and cannot be accepted as good law.
A contract is not a contract in favour of a third person merely because the person who concludes the contract
binds him- or herself to the other contracting party to be liable under the contract should the absent person not
"adopt", "ratify" or "accept" the contract. An ancillary obligation of this nature can be undertaken by a person
contracting as agent. Thus A, who concludes a contract with B as agent of C from whom he or she has no authority,
can bind him- or herself to B to be substituted for C should C not ratify A's act. The would-be agent, moreover, does
not become a stipulator in a contract in favour of a third person merely because he or she pays part of the purchase
price. He or she can do so in anticipation of being reimbursed by the contemplated principal or even with the hope
of gaining some other advantage. There are cases in which the impression is created that a contract is a contract in
favour of a third person by reason of the contracting party binding him- or herself to assume liability should the
absent person not adopt or ratify the contract, or by reason of his or her paying part of the purchase price or
undertaking liability for the payment of it.14 These cases are of doubtful authority as far as this point is
concerned.15
1 Cf the dictum of Trollip JA in Sentrale Kunsmis Korporasie (Edms) Bpk v NKP Kunsmisverspreiders
 (Edms) Bpk 1970 3 All SA 342 (A); 1970 3 SA 367 (A) 395. Literally, the expression stipulatio alteri
(stipulation for another) embraces both the contract in favour of a third person and the contract
concluded by an agent on behalf of a principal.
2 See Louisa & Protector of Slaves v Van den Berg (1830) 1 M 471; Baikie v Pretoria Municipality 1921
TPD 376; African Universal Stores Ltd v Dean 1926 CPD 390; Malelane Suikerkorporasie (Edms) Bpk v
Streak 1970 1 All SA 41 (T); 1970 4 SA 478 (T). The topic of contracts in favour of third persons is
discussed in greater detail in the titles CONTRACT and OBLIGATIONS.
3 As pointed out in par 135 post, there can be no representation of a person not yet in existence except
in the case of a contract concluded for a company to be formed if such contract complies with the
provisions of the Companies Act 61 of 1973s 35 or the Companies Act 71 of 2008s 21(1).
4 Eg children expected to be born; cf Ex parte Balsillie et uxor 1928 CPD 218.
5 See McCullogh v Fernwood Estate Ltd 1920 AD 204.
6 See pars 200 et seq.
7 This simple and obvious proposition can be illustrated with reference to an antenuptial contract in
which one of the prospective spouses stipulates from the other spouse a benefit for a child which may
be born of the marriage. If a child is born and in due course claims the benefit stipulated for him or
her, the child does not ratify or adopt his or her parents' antenuptial contract, nor does the child
become a party to the contract or displace the stipulator as a party to the antenuptial contract. The
child simply becomes entitled to the benefit by virtue of his or her parents' antenuptial contract.
8 Thus, A can stipulate from B an option in favour of C for the purchase of a piece of land at a
determined price. The contract between A and B does not have to be in writing but the terms of the
option will have to be in writing and signed by B. C can, by word of mouth, accept the right to exercise
the option but if he or she decides to exercise the option, he or she will have to do so in writing in
order to comply with the provision of the Alienation of Land Act 68 of 1981s 2(1).
9 See McCullogh v Fernwood Estate Ltd supra; Ex parte Vickerman 1935 CPD 429; Ackermann v Burland
& Milunsky 1944 WLD 172; Bagradi v Cavendish Transport Co (Pty) Ltd 1957 1 All SA 392 (D);
1957 1 SA 663 (D).
10 See Peak Lode Gold Mining Co Ltd v Union Government 1932 TPD 48 51 per Greenberg J; McCullogh v
Fernwood Estate Ltd supra 217 per De Villiers JA.
11 This seems to be the approach of Innes CJ in McCullogh v Fernwood Estate Ltd supra 209-210; and
see Kynochs Ltd v Tvl Silver & Base Metals Ltd 1922 WLD 71 77 per Ward J.
12 Cf McCullogh v Fernwood Estate Ltd supra 215 per De Villiers JA; Ex parte Elands Properties (Pty) Ltd
1945 TPD 37; Bagradi v Cavendish Transport Co (Pty) Ltd supra.
13 Cf dictum of Holmes JA in Sentrale Kunsmis Korporasie (Edms) Bpk v NKP Kunsmisverspreiders
(Edms) Bpk supra 394.
14 See McCullogh v Fernwood Estate Ltd supra 209 216; Ex parte Vickerman supra 431; Ex parte Elands
Properties (Pty) Ltd supra 39; Martian Entertainments (Pty) Ltd v Berger 1949 4 All SA 397 (E);
1949 4 SA 583 (E); Bagradi v Cavendish Transport Co (Pty) Ltd supra.
15 Cf Olifants Trust Co v Pattison 1971 1 All SA 32 (W); 1971 3 SA 888 (W).

128 The representative or agent and the messenger The representative or agent concludes a juristic act on
behalf of another person by an expression of his or her own will. The messenger, on the other hand, merely
conveys the words of one person to another person. The juristic act is concluded by the person whose words he or
she conveys.1 It has been suggested that the essential difference between the agent and the messenger is that
the former exercises a discretion to a greater or lesser degree, whereas the latter does not.2 It is true that a
messenger merely transmits the statement of one person to another person, but that does not mean that a person
whose powers are circumscribed to such an extent that he or she has no scope to determine the terms of a
contract or other juristic act is necessarily a messenger and not an agent. The crucial point is whether he or she
acts in the name of another person. Thus, a conveyancer who appears before a registrar of deeds to register a
deed is not a messenger but an agent even though his or her powers are described in minute detail. Similarly,
when marriage by proxy was still competent, the person who appeared for the absent party before the marriage
officer was not a messenger but a representative, even though he or she had no discretion regarding the choice of
a marriage partner.3
1 There are no reported cases dealing pertinently with the distinction but cf Bird v Sumerville 1961 3 All
SA 335 (A); 1961 3 SA 194 (A) 202; Stewart v Zagreb Properties (Pvt) Ltd 1971 2 All SA 498 (RA);
1971 2 SA 346 (RA); Nordis Construction Co (Pty) Ltd v Theron, Burke & Isaac 1972 2 All SA 261 (D);
1972 2 SA 535 (D) 539; Saambou-Nasionale Bouvereniging v Friedman 1 9 7 9 2 A l l S A 7 1 ( A );
1979 3 SA 978 (A); and a very casual but not illuminating remark in Sampson v Union & Rhodesia
Wholesale Ltd (in liquidation) 1929 AD 468 482. In Watermeyer v Murray 1911 AD 61 the parties
conducted negotiations through a firm of attorneys. Although Solomon J regarded the attorneys as
agents of the plaintiff in respect of part of the negotiations and again as agents of the defendant for
part of the negotiations, the view of Lord de Villiers CJ that the firm acted as a "mouthpiece" of the
defendant is to be preferred.
2 See Kerr Agency 18; and cf Cloete & Cloete v R 1945 OPD 204 207.
3 Cf Davidson v Plewman 1946 WLD 196; Stiller & Dyzenhaus v O'Brien 1947 2 SA 1094 (W).

129 Persons who cannot be agents An agent is someone who concludes a juristic act on behalf of another
person. Thus, a person who has no capacity to conclude juristic acts can no more conclude a juristic act for another
person than for him- or herself. Thus, an infant or a person who is insane or drunk cannot validly conclude a juristic
act for another person.1 Since the agent does not bind him- or herself but his or her principal, a person of limited
capacity like a minor2 or, previously, a married woman subject to the marital power can act as an agent.3
1 Since a messenger does not conclude a juristic act on behalf of another person, any person who is
capable of transmitting a message can be employed as a messenger.
2 Cf Dreyer v Sonop Bpk 1951 2 All SA 385 (O); 1951 2 SA 392 (O).
3 See Aird v Hockly's Estate 1937 EDL 34 42; Mineworkers' Union v Cooks 1959 1 All SA 146 (W);
 1959 1 SA 709 (W); and cf Selby v Friedmond 1888 5 SC 266.

130 Juristic acts which do not admit of representation By and large, all types of juristic acts can be concluded on
behalf of another person by a representative. There are, however, a number of exceptions. Although marriage by
proxy seems to have been competent under the common law,1 the Marriage Act2 specifically provides that no valid
marriage can be contracted under the provisions of the Act by means of a representative.3 In terms of the old Hire-
Purchase Act,4 an agreement as defined by the Act had to be in writing and signed by the buyer in person.5 This
had the effect that a buyer could not be represented by another person in the conclusion of such an agreement,
and caused difficulties in the cases of infants, lunatics and juristic persons other than companies incorporated in
terms of the Companies Act.6 The former Credit Agreements Act7 required that any credit agreement "be reduced
to writing and signing by or on behalf of every party thereto";8 the current National Credit Act9 prescribes pre-
agreement disclosure formalities (including, in particular, that the credit provider must have given the consumer a
pre-agreement statement and quotation in the prescribed form)10 and requirements pertaining to the form of credit
agreements (including, in particular, the delivery to the consumer, without charge, of a copy of a document that
records their credit agreement, which must be transmitted to the consumer in a paper form or in a printable
electronic form),11 without laying down any requirement to the effect that the credit agreement must be signed in
person by either party to it. An agent may therefore sign a credit agreement on behalf of one or other of the parties
to it, provided that the prescribed formalities regarding pre-agreement disclosure and the form of the credit
agreement are complied with.
1 Cf Roberts 1941 THRHR 141 230; Davidson v Plewman 1946 WLD 196; Stiller & Dyzenhaus v O'Brien
1947 2 SA 1094 (W).
2 25 of 1961s 29(4).
3 See also Hahlo Husband and Wife 79.
4 36 of 1942 s 4(1) (now repealed).
5 Cf Western Credit Africa (Pty) Ltd v Joseph 1962 4 All SA 524 (E); 1962 4 SA 521 (E).
6 In which latter cases s 69(1)(a) of the Companies Act 61 of 1973 operated.
7 75 of 1980.
8 S 5(1)(a).
9 34 of 2005.
10 S 92(1) (2)(a)-(b).
11 S 93(1).

131 Contracts concluded by a representative with him- or herself A contract is a juristic act for which
expressions of a common intention by at least two persons are required, so one person cannot as a representative
of another person conclude a contract with him- or herself. Where a representative purports to conclude a contract
with him- or herself, the purported contract is simply a nullity. In Gutman v Standard General Insurance Co Ltd1 A
contracted to sell his business to B, but A contracted in the name of B as his agent. The court concluded that the
contract lacked the necessary requirements for a valid juristic act.2 But if the facts show that there are two wills
which are implemented or expressed through one person, then the position is different and the decision in Gutman
v Standard General Insurance Co Ltd is distinguishable.3
In a series of cases dealing with donations by a father to his son, the attitude was adopted that a father can as
a representative of the son accept a donation from himself, provided that there are clear indications that the father
intended to divest himself of the thing so donated.4 These decisions are based on a misinterpretation of the views
expressed by our institutional writers on Roman-Dutch law. In Roman law a paterfamilias could not make a valid gift
to a filiusfamilias, the reason being that the paterfamilias, by virtue of his patria potestas, was the owner of whatever
ostensibly belonged to the filiusfamilias. A gift by the paterfamilias to his filiusfamilias would therefore amount to a
gift by the paterfamilias to himself.5 The Roman-law rules regarding patria potestas were not received into Roman-
Dutch law and the Roman-law reason for the invalidity of a gift by a father to his son did not apply in Roman-Dutch
law.6 A father could make a donation to his son as validly as he could make a donation to any other person.
Donation was and is still a bilateral juristic act and acceptance by the donee is necessary for perfection of this
juristic act.7 A father cannot represent his infant son as acceptor of a gift from himself to the son nor can he
represent a stranger as acceptor of a gift from himself to the stranger. If the son is no longer an infant, he can
accept the gift in person but if he is still an infant some person other than the father will have to accept on behalf of
the son.8
The notion that no contract comes into being where a person purports to contract with him- or herself on behalf
of another person seems to underlie the statement9 that a tutor cannot buy a thing belonging to his or her ward,
and to underlie the fact that the same rule applies to curators and procurators and those who administer the affairs
of other people.10 This obvious conclusion is, however, obscured by the consideration that a person who stands in
a fiduciary relation to another person may not exploit his or her position to his or her own benefit and the detriment
of the other person. This consideration is not peculiar to a person who contracts on behalf of another person but
applies to any person who stands in a fiduciary position to another person, and thus even to a mandatory who
does not conclude a contract as a representative of another person.11 The failure to distinguish between the
notional impossibility of a person contracting with him- or herself in different capacities, on the one hand, and
abusing a fiduciary relationship, on the other hand, has led to a lack of clarity which makes it impossible to
determine the basis on which some cases were decided.12
It is submitted that a person cannot as a representative of another person contract with him- or herself for the
simple reason that a contract can come into being only by agreement between at least two persons.13 Where the
representative purports to contract with him- or herself there is no contract which the principal can elect to set
aside or confirm, and this is the position even if there is no conflict between interest and duty. The rule regarding a
conflict between interest and duty can come into play only where a juristic act is concluded, for instance where a
tutor buys from a co-tutor or a mandatary buys from the mandatory personally or from a representative of the
mandatory.
1 1981 4 All SA 496 (C); 1981 4 SA 114 (C).
2 See also Getz v Hoon 1935 WLD 128, where no reason is proffered for the bald statement that a sale
to himself by an agent is invalid, and the remark made in Fourlamel (Pty) Ltd v Maddison 1977 1 All
SA 513 (A); 1977 1 SA 333 (A) 344C. The assumption of the court in Joel Melamed & Hurwitz v
Cleveland Estates (Pty) Ltd, Joel Melamed & Hurwitz v Vorner Investments (Pty) Ltd 1984 2 All SA 110
(A); 1984 3 SA 155 (A) 164E that it may be possible should not be interpreted as support for the view
that it is indeed possible.
3 Samcor Manufacturers v Berger 2000 JOL 5988 (T); 2000 3 SA 454 (T) 460H-461C.
4 See Elliott's Trustees v Elliott & his Curator (1845) 3 M 86; Thorpe's Executor v Thorpe's Tutor (1886)
4 SC 488; Slabber's Trustee v Neezer's Executor (1895) 12 SC 163; and cf Ex parte Van Aardt 1911
TPD 532; Buttar v Ault 1950 4 All SA 272 (T); 1950 4 SA 229 (T).
5 See D 41 6 1 1; C 5 16 25; C 6 26 11 1.
6 See Groenewegen ad I 3 (19)20 6n3; Van Leeuwen Cens For 4 12 8; Schorer n11 on Grotius Inleiding
3 2 8.
7 See Voet Commentarius 39 5 11; De Kock v Executors of Van de Wall (1899) 16 SC 463; Crookes v
Watson 1956 1 All SA 227 (A); 1956 1 SA 277 (A) 299.
8 See Van der Keessel Thes Sel 485 and more fully Prael 3 2 8.
9 See D 18 1 34 7.
10 See also D 26 8 5 2 in which it is said that a tutor cannot act as buyer and seller in the same
transaction.
11 Cf Hargreaves v Anderson 1915 AD 519; Robinson v Randfontein Estates Gold Mining Co Ltd 1921 AD
168.
12 See Forbes, Still & Co v Sutherland (1856) 2 S 231; Getz v Hoon supra. Even the leading case of Osry
v Hirsch, Loubser & Co Ltd 1922 CPD 531 is not clear on this point.
13 See Strydom v Protea Eiendomsagente 1979 3 All SA 454 (T); 1979 2 SA 206 (T).

132 Double representation A person cannot, as representative of another person, conclude a contract with him-
or herself.1 Similarly, he or she cannot conclude a contract on behalf of one person with him- or herself as
representative of another person. Although it has been suggested that a broker is the agent of both the buyer and
the seller, this statement cannot be taken at face value.2 The formal execution of an antenuptial contract before a
notary, however, is not the conclusion of a contract and both future spouses can be represented by a single
representative.3
1 See par 131 ante.
2 See Benoni Produce & Coal Co Ltd v Gundelfinger 1918 TPD 453 459; Jacobs Levitatz & Braude v
Kroonstad Roller Mills 1921 OPD 38.
3 Cf Ex parte Oosthuizen 1964 1 All SA 140 (O); 1964 1 SA 174 (O).