Polo Susan Pitso NO and Others v Chabeli Molatoli Attorneys Incorporated

The deceased, Mr Likano John Pitso, died intestate on 15 November 2021. Mr Chabedi Molatoli, an attorney and director of the respondent firm, had assisted the deceased and his family with legal matters as they were close friends. On 18 November 2021, Mrs Polo Susan Pitso (the widow) entered into a written mandate and fee agreement with the respondent firm for the administration of the deceased's estate should she be appointed as executrix. The agreement provided for a 3.5% fee and stipulated that if the mandate was terminated without valid reason, the full agent fee would be payable within seven days. Mrs Pitso was appointed executrix on 30 December 2021. On 1 April 2022, the respondent sent an interim invoice which Mrs Pitso contested, stating the fees were excessive (more than 60% of available funds) and that she was not in her right state of mind when signing the agreement. On 28 April 2022, Mrs Pitso terminated the respondent's mandate and appointed Seleka Attorneys to administer the estate.

• Whether a principal (executrix) is entitled to terminate a mandate of agency at will
• Whether the termination of the respondent's mandate was lawful
• Whether the requisites for a final interdict were satisfied
• Whether the executrix should be removed from her position

1. The appeal is upheld with costs. 2. The order of the high court is set aside and substituted with the following: 'The application is dismissed with costs.' 3. The cross-appeal is dismissed with costs.

At common law, a mandate of agency is generally terminable at the will of the principal. It is against public policy to coerce a principal into retaining an individual as an agent when the principal no longer wishes to retain them as such. If the termination of the mandate has prejudiced the agent, the agent's remedy lies in a claim for damages and not in an order compelling the principal to retain them as agent. For a final interdict to be granted, an applicant must establish: (1) a clear right; (2) an injury actually committed or reasonably apprehended; and (3) the absence of similar protection by any other remedy. An agent whose mandate has been terminated cannot obtain interdictory relief preventing the termination where the agent has an adequate alternative remedy in the form of a claim for damages.

The Court noted that one can imagine the chaos that would result if every attorney whose mandate is terminated were to approach court for an order that his or her services be retained. The Court also observed that the high court did not make an order for removal of Mrs Pitso as executrix of the estate, and in any event, the allegations that Mrs Pitso acted in her own interest and not in the interests of creditors were not supported by any facts. The Court noted that the cross-appeal was fatally defective as the respondent sought an order on cross-appeal despite no adverse order having been made against it in the high court - this compounded the error of the high court in granting leave to cross-appeal in the first place.

This case reinforces the fundamental common law principle of agency that a mandate is generally terminable at the will of the principal. It affirms that public policy does not permit courts to compel a principal to retain an agent against their will, even where a written agreement exists. The case provides important guidance on the limitations of interdictory relief in the context of agency relationships and confirms that an agent's remedy for wrongful termination lies in damages, not in specific performance or interdictory relief. This is particularly relevant in the context of estate administration where executors may need to change legal representatives. The judgment also serves as a reminder that applicants for final interdicts must strictly prove all the requisite elements, and that such extraordinary robust relief will not be granted lightly.