It is an estate agent’s sole mandate agreement binding if it is signed by only one spouse married in community of property? This is the question that was finally decided by the Western Cape High Court on Tuesday, 21 August 2018 in the matter of Blue Platinum Ventures 43 (Pty) Ltd v S & L Mesecke (Case No A 175/18).

In this matter Mr Mesecke had signed a sole mandate in favour of Rawson Properties at a time when he was getting divorced from his wife, to whom he was married in community of property. His wife did not sign the mandate. Rawson Properties introduced a willing and able purchaser during the period of the mandate for the full asking price, but the offer was not accepted. The property was then sold to a purchaser introduced by another agency. Rawson Properties sued for commission.

Mesecke’s attorneys argued as follows:

• In terms of the Matrimonial Property Act, a spouse married in community of property, acting alone, cannot bind the joint estate to any contract in terms of which immovable property forming part of the joint estate is sold or “alienated”. For such a contract to be binding, the written consent of the other spouse is also required.
• The granting of a sole mandate to an agent to market the property is an act so inextricably linked to the ultimate sale or “alienation” of the property that it should be included under the banner of contracts requiring the consent of both spouses.
• Because Mrs Mesecke did not sign the mandate agreement, it was not enforceable against the joint estate.

In deciding the matter, the judge noted that the section of the Matrimonial Property Act that Mesecke’s attorneys relied on, prohibited acts by spouses acting alone, which resulted in their joint estate losing real rights, such as property rights. He noted that the contract of mandate conferred only personal rights upon the parties, i.e the right to compel performance and the right to receive payment. In terms of the mandate, the estate agent was never given the power to conclude the sale agreement on behalf of the sellers.

He accordingly made a clear distinction between the estate agent’s mandate and the deed of sale that might have resulted. He therefore found in favour of Rawson Properties and held that the mandate was valid and enforceable against Mr and Mrs Mesecke. Rawson Properties were therefore entitled to be paid their commission.

We are happy that this area of the law has now been conclusively decided and we are proud of Liz Casey, and the litigation department at Miltons Matsemela, for their efforts in bringing about a successful conclusion to the matter.

Deon Welz
August 2018