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It was apparent that estoppel and ostensible authority were different, even though there may have been some overlap between them. Ostensible authority was the power to act as an agent indicated by the circumstances, even if the agent may have not truly have been given the power. Whereas estoppel, as was observed in West, was the rule that precluded the principal from denying that she gave authority to the agent. The law had always treated estoppel in the field of contracts as distinct. Her liability may have been based on either estoppel or the principle of objective theory of contract. Interference with the factual findings made by the Trial Court was neither necessary nor justified.
The Constitution in plain terms mandated courts to invoke the section when discharging their judicial function of interpreting legislation. That duty was triggered as soon as the provision under interpretation affected the rights in the Bill of Rights. The concept of apparent authority was introduced into law for purposes of achieving justice in circumstances where a principal had created an impression that its agent had authority to act on its behalf. If that appeared to be the position to others and an agreement that accorded with that appearance was concluded with the agent, then justice demanded that the principal must have been held liable in terms of the agreement. It could not be gainsaid that on the facts, there was a yearning for justice and equity.
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Based on the Applicant’s idea Vodacom developed a new product which was called, “Please Call Me” . The product enabled a cellphone user with no airtime to send a message to the other cellphone user, asking that person to call. Vodacom’s internal newsletter stated that thanks to the Applicant who suggested the service to the product development team, which took up the idea, Vodacom had launched a new product called ‘Please Call Me’. The newsletter also declared its success. The service was offered for free for a limited period from the date of its launch, later Vodacom charged for it.
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. 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. The approach that collapsed apparent authority and estoppel into the same thing was not underpinned by principle, let alone an established one. Instead that approach lacked the precision of thought and expression.
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Estoppel was a wide-ranging equitable concept that found application in a number of different settings, not only where issues of authority or agency arose. Ostensible authority was merely one more instance of estoppel. It was not by any means the only one, but it was one that cropped up frequently in practice, where there was no authority, express or implied. There were cases in which ostensible authority coincided with actual authority arising by implication and in that event. Actual authority and ostensible authority would be two sides of the same coin, but this was a case where it was accepted that there was no authority at all, express or implied, that took it into the realm of estoppel.
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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. 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. Therefore, it was clear that, even if the representee was not an outsider, under apparent authority the principal could still have been bound.
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If the appointment was made, but some of that authority was withheld or subjected to limitations, it was essential that that was made clear to persons dealing with that individual. Otherwise they would be entitled to hold the company to the representation of authority created by the appointment. A representation may have also been made by permitting the putative agent to engage in a course of dealing on behalf of the principal. In the law ostensible authority had always been treated as a form of estoppel, and that was the correct approach as a matter of principle. That ostensible authority was a manifestation of estoppel by representation was clear.
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