3 August 2021 by , and Dispute Resolution Alert

But it’s my emails and stuff!

Does the mandament van spolie remedy apply to email addresses and network servers? This question was recently answered by the Supreme Court of Appeal (SCA) in the case of Blendrite (Pty) Ltd and Another v Moonisami and Another (Case no 227/2020) [2021] ZASCA 77.

To succeed in obtaining a spoliation order, an applicant simply has to prove that there was peaceful and undisturbed possession of a movable or immovable object and that the dispossession thereof was unlawful. The spoliation remedy also applies to incorporeal property, recognising quasi-possession of an incorporeal thing, which consists of the exercise of control over an incorporeal coupled with the animus to exercise such control. An example of incorporeal property would be the exercise of a servitude to obtain water.

The difficulty with the courts establishing a basis on which quasi-possession is protected arises from the fact that there is no possession of a corporeal thing. In most cases where quasi-possession has been protected by a spoliation order, it pertains to rights to use property or an incident of possession or control of the property and is not applicable to disputed contractual rights.

In this present case, the applicant, Mr Moonisami, who was one of two directors of the second respondent, Blendrite, instituted an urgent spoliation application for an order directing the first respondent, a web hosting company Global Network Systems, to restore Mr Moonisami’s access to Blendrite’s network server and email address.

Mr Moonisami’s access to Blendrite’s network server and email address had been terminated after his relationship with the third respondent, Dr Palani, the other director of Blendrite, irretrievably broke down. The High Court was satisfied that peaceful and undisturbed quasi-possession had been established by Mr Moonisami and granted the spoliation order.

On appeal, the SCA considered whether the High Court erred in finding that Mr Moonisami’s access to Blendrite’s network server and email address amounted to quasi-possession of incorporeal property, which qualified for protection by a spoliation order.

The SCA found that Mr Moonisami prior use of Blendrite’s network server and email address was not an incident of possession of movable or immovable property, nor did Mr Moonisami possess any movable or immovable property in relation to his use of the network server and email address. Mr Moonisami’s prior use therefore did not amount to quasi-possession of incorporeal property.

The approach taken by the SCA was that that any entitlement to use of Blendrite’s network server and email address was a personal right arising from his disputed employment relationship with Blendrite and any spoliation order, in effect, would amount to an order of specific performance. In light thereof, Mr Moonisami’s prior access to Blendrite’s network server and email address was not protectable by a spoliation order and accordingly the SCA set aside the High Court’s order.

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