In the case of Lochner v Schaefer Incorporated and Others (3518/16)  ZAECPEHC 4 (24 January 2017) the sellers approached the court for an order that the conveyancing firm be held liable for their losses after they fell victim to a cyber scam in which they had apparently instructed their conveyancers via email to transfer the proceeds from the sale of their property to a different account.
It turned out to be a fraudulent account and the Lochners lost R268 348. In asking for summary judgment for the amount, Schaeffer, argued that they had a bona fide defence to the claim in that they were not negligent in the performance of their mandate given the circumstances of the fraud.
Judge Clive Plasket, however, ruled that the Lochners would also have to prove ‘fault’ on the part of the lawyers as it was not correct to say that they were liable simply because they did not carry out the mandate as agreed. On this point he was not prepared to make a finding based merely on the papers in court.
As at  ‘That is a matter that can only properly be determined after evidence has been led and tested by cross-examination. I am satisfied, however, that the defendants have raised a bona fide defence – that despite not having executed the mandate, their failure was not due to their negligence.’
The application for summary judgment was therefore dismissed with the defendants being granted leave to defend.