EMAILED BANK DETAILS INHERENTLY DANGEROUS
Delict – Pure economic loss – Conveyancer – Duty of care – To warn client of cyber-fraud – To take precautions in communications against interception of bank details – Emailed banking details inherently dangerous – Wrongfulness – Delictual liability established.
Hawarden v Edward Nathan Sonnenbergs Inc  ZAGPJHC 14 at -
Facts: Emails and attachments were received by Ms Harwarden which led her to transfer R5,5 million as the outstanding amount due for her purchase of an immovable residential property into an account she thought was that of ENS attorneys. But it was a fraudulent account and part of a “business email compromise” (BEC) perpetrated by an unknown cybercriminal.
Claim: In delict for pure economic loss and damages of R5,5 million and interest.
Discussion: The contention that ENS owed plaintiff a duty of care to warn her of the dangers of BEC fraud and to check the account before making payment; the correspondence between the parties about the sale and the amounts to be paid; the telephone calls; the option of guarantee forms from the bank instead of transferring the money; how plaintiff believed the emails she received were genuine; that the estate agent repeatedly warned plaintiff of the risks of cyber-crime; the testimony of the conveyancing secretary and that she did not know that PDF documents could be manipulated; and that the joint expert meeting agreed that had a secure portal been used by ENS to communicate its banking details to the plaintiff there would have been no way for the cyber criminals to tamper with the sensitive letter or documents reflecting the ENS banking account details.
Findings: ENS owed at least a general duty of care to a purchaser of property in this case the plaintiff. The near-universal practice for conveyancers to send their banking details by email does not absolve ENS of its unsafe behaviour. Its own investment mandate was wholly destructive of its reliance upon the alleged “near-universal practice”. Plaintiff cannot be faulted for placing her trust in ENS who she knew was a very large and reputable law firm. ENS was the proximate cause of the loss in that it provided its own bank account details and was responsible for their accuracy and for the safety of their transmission. In doing so ENS acted wrongfully in light of legal convictions of community. The risk of loss to Mrs Hawarden was highly foreseeable by ENS.
Order: ENS is ordered to pay the sum of R 5,5 million and interest.
ALLEGED INTERVIEW IN A TOILET
Delict – Actio iniuriam – Interview related to councillor position – Alleged impairment of dignity from being interviewed in “female ablution block” – Photos not supporting conclusion that room a toilet – Use of room not offending values of society – Circumstances not showing an intention to infringe the plaintiff’s dignity.
Democratic Alliance v Rulumeni  ZASCA 1 at -
Facts: Ms Rulumeni was a member of the DA and applied to be a councillor. She was interviewed but “red flagged” by the Electoral College as a result of certain probity findings. When she appealed she was interviewed by the selection panel in a room adjacent to a conference venue at Bunker’s Hill Golf Estate, where a training programme for candidates was to be conducted. She contends that her dignity was impaired because she was interviewed in a “female ablution block”. She sought damages in an amount of R10 million as a solatium.
Appeal: Against an order of the High Court which held the DA liable for payment of damages for the infringement of Ms Rulumeni’s dignity.
Discussion: The circumstances and location of the interview; that she was shocked to learned that the interview was to take place in the room leading to the ladies’ toilets and that she felt degraded and humiliated; that the outcome of the process was that she was ranked 25th on the list; the chairperson’s explanation of how he had looked for another venue and that they were under pressure to complete the selection process.
Findings: The photographs show that it was a large, carpeted room containing lockers, a dressing table, wall mounted mirror and a couch. It cannot be described as a toilet or an ablution facility. It cannot be said that the use of such a space offends the values of our society. The preceding circumstances and the events also did not support a conclusion that there was an intention to infringe her dignity.
Order: The appeal is upheld and the order of the High Court replaced with one dismissing the claim under the actio iniuriarum. The DA sought no costs on appeal, having accepted that the choice of venue was not appropriate.
GOOSEN AJA (MAKGOKA JA, NICHOLLS JA, HUGHES JA and SALIE AJA concurring.)
TAXATION AND TIME SPENT ON LEGAL RESEARCH
Costs – Taxation – Review – Time spent researching case law and legislation – Novel matter and nature of relief sought unique – Over-caution cannot be condoned – Duplication of work by attorney and counsel cannot be justified.
The Vollmer matter
The attorney seeks a review of the Taxing Master’s decision not to tax a bill of costs in an ex parte surrogacy application. The taxing master considered the costs claimed in the bill of costs as pre-litigation or non-litigious costs because the attorney’s mandate was terminated before any litigation commenced.
Discussion and finding: Those matters of such nature relating to service based legal fees between an attorney and client with or without a contingency fee agreement generally do not proceed before the Taxing Master of the court, and instead will come before the committees established under the Legal Practice Council. The Taxing Master’s lack of jurisdiction to tax the bill of costs is confirmed and the review is therefore dismissed. See paras -.
The Brenner Mills matter
The client entered into a contingency fee agreement with the attorney to render professional services relating to the reduction of penalty at the Competition Commission. Before the matter could be heard by the Competition Tribunal, the client instructed the attorney to withdraw the matter and submit a bill of costs that was taxed by the Taxing Master. The parties had agreed that in the event of a premature termination of the agreement that the client shall owe the attorneys an amount as agreed upon or taxed by the Taxing Master.
Discussion: The matter was novel and the nature of the relief sought was unique. Even though the attorney was an expert in the field, the Taxing Master accepted that the novelty of the matter required over-caution and thorough research. The complaint pertained to the time spent researching legislation and case law in preparation for consultation with counsel. Both the attorney and the counsel conducted research. A significant duplication of work cannot be justified under any circumstances. Over-caution cannot be condoned. Excessive time spent overcautiously to ensure success is replaced with an assessment of what time expended was reasonable to complete the service rendered. See in particular para .
Order: The review succeeds on certain items and the decision of the Taxing Master is replaced with the hours set out in para  to ensure that the client is not over-reached.
The applicant contends that the attorney was briefed because of his competence and expertise in the field of Competition Law and is now charging to qualify himself as an expert at the expense of the client. Para .
ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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