Agency as a complex fiduciary relationship

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[L-R] Deputy Vice Chancellor: Research and Innovation Professor Peter Clayton; Law Professor Graham Glover; Deputy Vice Chancellor: Academic and Student Affairs; and Dean of Law Professor Laurence Juma.
[L-R] Deputy Vice Chancellor: Research and Innovation Professor Peter Clayton; Law Professor Graham Glover; Deputy Vice Chancellor: Academic and Student Affairs; and Dean of Law Professor Laurence Juma.

By Sylvia Tanya Mugwagwa


On 7 September 2022, the Rhodes University Deputy Vice Chancellors, Faculty of Law staff, fellow academics, students, family and friends of Professor Graham Glover gathered in the Eden Grove Blue Lecture Theatre for his inaugural lecture entitled “‘Please Call Me’ Agent: The Taxonomy of Agency Law in South Africa.”

In his introductory remarks, the Deputy Vice Chancellor: Research and Innovation Professor Peter Clayton proclaimed that the inaugural lecture was in “celebration of Professor Graham Glover’s promotion to full professor this year, in his 25th year of service to the University”.

Professor Clayton went on to relay to those in attendance the personal and professional history, laurels and achievements of Professor Glover, both as a former Rhodes University student and as a current Rhodes University academic. Professor Glover completed his BA with a double first in Law and History at Rhodes University in 1994. He then proceeded to the Faculty of Law, where he obtained his LLB degree, with distinction, in 1996. According to former Registrar Dr Keith Hunt, Professor Glover was the first Rhodes University student to earn Academic Honours in two different faculties.

Professor Glover advanced his academic career further and took up a Master’s degree scholarship to read for an LLM at Rhodes University, which he ultimately converted to a doctoral degree, completing his thesis entitled “The Doctrine of Duress in the Law of Contract and Unjustified Enrichment in South Africa” in 2003.

Meanwhile, he was appointed to the post of Lecturer in the Rhodes University Law Faculty in October 1998. He became a Senior Lecturer in 2004, an Associate Professor in 2008 and earned a promotion to Chair this year. In his teaching and research career at the University, Professor Glover has supervised two PhD and two LLM students and has published 30 sole-authored accredited journal articles, three books (comprising two edited collections and a monograph) and eight book chapters.

His works have been cited 38 times by the High Courts in South Africa, including the Supreme Court of Appeal nine times.

In commencing his lecture, Professor Glover began by recognising the supportive role his parents, sister, wife Margaux, family, and friends had played in his life as an academic. He acknowledged his legal family, including his colleagues, as well as the various lecturers, supervisors and mentors he had the honour of being moulded by during his time as a student and scholar at Rhodes University. Notably, Professor Glover acknowledged the role the late former Dean of Law at Rhodes University, Professor Emeritus Alastair Kerr, played in the trajectory of his career as a legal academic.

Had Professor Kerr still been alive, he would have celebrated his 100th birthday this year. Professor Kerr, who has been described as “the greatest professor in the history of the faculty”, wrote his doctoral thesis on the Law of Agency, and Professor Glover dedicated the academic portion of the lecture to the late Professor Kerr’s honour.

Professor Glover’s lecture provided a brief history of the juridical basis of agency law. He posited that it has become increasingly clear that agency should be seen as a complex phenomenon that synthesises both internal consent and external power/liability models. He outlined how the story of Mr Nkosana Makate’s ongoing battle against the cell phone giant Vodacom for compensation for his ‘Please Call Me’ idea has motivated some revisionist analysis of how we understand representative agency from a legal perspective, particularly regarding how a principal may authorise an agent by manifesting assent that the agent act on his behalf.

Professor Glover explained how agency authority may be conferred, including how Mr Makate’s case illustrated the disputed concept of apparent authority.

He then proposed a wider approach to agency, including that, “unempowered agents (for example, estate agents or insurance brokers) should be recognised as a species of agents to allow us to talk about agency in a more complete sense”. He reflected that “agency is neither merely a contract nor power to act, but is a complex fiduciary relationship”. In his view, recognising these unempowered intermediaries as agents, which the law traditionally has not, “might facilitate a more complete understanding of agency as a legal phenomenon.”

He concluded by expressing the view that if we get clarity on the fundamental principles of agency, finer issues of detail can then be more suitably resolved.

After Professor Glover had concluded his lecture, the Dean of Law, Professor Laurence Juma, closed off the evening with a vote of thanks. He presented Professor Glover with a token of appreciation, stating that he is “undoubtedly a leading scholar in the field, and we are so fortunate to have him in our faculty”.