A power of attorney is a written document by one party (the principal) in which he/she authorises another (the agent) to act on his or her behalf. A power of attorney can be general or special. A general power of attorney gives authority to an agent to do all and any acts which the principal could do if personally present. A special power of attorney on the other hand authorises the agent to do a specific act for example buying a property on behalf of the principal. Arguably, a general power of attorney is open to abuse given the general authority given to the agent.
For a power of attorney to be valid it must be signed by the principal and witnessed. It should state the name of the agent, the scope of the authority and the date and place of its execution. The place of execution is important because if it is executed outside the country it has to be authenticated. In Zimbabwe National Network for People Living with HIV/AIDS v Nkomo N.O. and Another (HB 57/07) the court stated as follows;
“In case number HC 935/03 Nkosana Sibanda who instituted the proceedings purported to rely on a general power of attorney which was not signed and witnessed. The power of attorney also did not indicate where it was executed or drawn. That aspect was important as those executed outside Zimbabwe need authentication by a certificate from a notary public. It was therefore submitted that the power of attorney was invalid.”
Further C. H. Van Zyl in his work “The Notarial Practice of South Africa” at p 81 says:-
“The object of authentication is to ensure the genuineness of the signatures to deeds. Prima facie this authentication is a guarantee that all the required solemnities or requisites of the law in due execution of a deed have been complied with and that the parties therein named have duly signed it in the presence of the witnesses and that the notary in whose presence it was signed was qualified to act as such.”
An agent cannot act beyond the scope of the powers given in the power of attorney. He/she can only do what he/she is authorised to do otherwise the principal will generally not be bound by such acts. Thus in Mtemererwa and Another v Tawarwisa and Another ( HH 160-2004 ) the court held as follows;
“Incasu the power of attorney nominated and appointed the agent for managing and transacting all the principal’s affairs involving the purchase of the property. There would be no justification for construing it to have authorised him to bring and prosecute legal proceedings. He had no mandate to do that.”
Where the principal withdraws his/her authority he/she should do so through a document called Revocation of Power of Attorney. He/she should make sure that all concerned third parties are made aware of the revocation otherwise he/she will still be held liable for the unauthorised acts of the agent.
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