Lochner v Schaefer Incorporated and Others (3518/16) [2017] ZAECPEHC 4 (24 January 2017)

Lochner v Schaefer Incorporated and Others (3518/16) [2017] ZAECPEHC 4 (24 January 2017)

The court held that fault (negligence) is a necessary element for liability under a contract of mandate between attorney and client. The plaintiff's argument that mere non-execution of the mandate suffices for liability was rejected. On the papers, the court was not prepared to find that the defendants were negligent, as this issue could only be properly determined after oral evidence and cross-examination. The defendants had raised a bona fide defence that their failure to execute the mandate was not due to negligence. Accordingly, summary judgment was refused and the defendants were granted leave to defend.

Citation
[2017] ZAECPEHC 4
Parties
Plaintiff: Johan Andre Lochner; Defendant: Schaefer Incorporated; Defendant: Morne Schaefer; Defendant: Tania Schaefer
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
24 January 2017
Case Number
3518/16
Procedural Posture
Summary Judgment Application / Application for Summary Judgment; Determination of Bona Fide Defence
Outcome
Application for summary judgment dismissed; defendants granted leave to defend; costs to be costs in the cause.
Judges
C Plasket
Legal Topics
Mandate Contract, Professional Negligence, Summary Judgment, Attorney Client Relationship
Civil Procedure Commercial and Corporate Mandate Contract Professional Negligence Summary Judgment Attorney Client Relationship

Case Brief

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Parties

Johan Andre Lochner

Plaintiff

Schaefer Incorporated

Defendant

Morne Schaefer

Defendant

Tania Schaefer

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment; Determination of Bona Fide Defence

Legal Issues

  1. 1 Is fault (negligence) a necessary element for liability under a contract of mandate between attorney and client?
  2. 2 Have the defendants raised a bona fide defence to the plaintiff's claim for damages arising from alleged breach of mandate?

Ratio Decidendi

The court held that fault (negligence) is a necessary element for liability under a contract of mandate between attorney and client. The plaintiff's argument that mere non-execution of the mandate suffices for liability was rejected. On the papers, the court was not prepared to find that the defendants were negligent, as this issue could only be properly determined after oral evidence and cross-examination. The defendants had raised a bona fide defence that their failure to execute the mandate was not due to negligence. Accordingly, summary judgment was refused and the defendants were granted leave to defend.

Court Disposition

Application for summary judgment dismissed; defendants granted leave to defend; costs to be costs in the cause.

Orders

  • The application for summary judgment is dismissed.
  • The defendants are granted leave to defend.