In Blendrite (Pty) Ltd and Another v Moonisami and Another (227/2020) [2021] ZASCA 77, the Supreme Court of Appeal recently had to decide if access to "email and company network/server access" could be spoliated and render the person having done so open to an adverse spoliation order, forcing them to return possession to the complainant. 

After a dispute arose between the two directors of Blendrite, one of them instructed the company's IT contractors to terminate the other's access to the company's "email and company network/server". An urgent application based on the mandament was brought, seeking that such access be restored, alleging that peaceful and undisturbed possession had been spoliated. 

A litigant could seek to rely on the mandament because of the lighter burden of proof than would be the case with a traditional interdict. With the mandament, the applicant does not need to show a clear right, only that it was in peaceful and undisturbed possession prior to the spoliation. 

As aforesaid, the mandament is principally concerned with possession. 

LAWSA defines possession as "...the combination of a factual situation and of a mental state consisting in the factual control or detention of a thing (corpus) coupled with the will to possess the thing (i.e. the animus possidendi). 

The court referred to Nino Bonino v De Lange explaining the nature of spoliation, namely "...any illicit deprivation of another of the right of possession which he[or she] has, whether in regard to movable or immovable property or even in regard to a legal right." 

In Eskom Holdings Soc Ltd v Masinda it was held by the SCA that: 

"In order to justify a spoliation order the right must be of such a nature that it vests in the person in possession of the property as an incident of their possession. Rights bestowed by servitude, registration or statute are obvious examples of this. On the other hand, rights that flow from a contractual nexus between the parties are insufficient as they are purely personal, and a spoliation order, in effect, would amount to an order of specific performance in proceedings in which a respondent is precluded from disproving the merits of the applicant's claim for possession." 

And further: 

"In the context of a disconnection of the supply of such a service, spoliation should be refused where the right to receive it is purely personal in nature." 

In Telkom SA v Xsinet (Pty) Ltd the SCA similarly held that the receipt of the telecommunications service arose from a personal right in contract. The use of the bandwidth and telephone service was held not to be an incident of possession of the premises from which the respondent operated. 

The crisp for the court to decide was accordingly whether the prior access to a company's computing infrastructure amounted to quasi-possession of an incorporeal, which qualified for protection by a spoliation order. 

The court found that such access is a purely personal right in contract and accordingly that the mandament is not the appropriate remedy for such cases. 

Comment 

The SCA's decision is a good one in writer's view, as it promotes legal certainty. There is always a significant risk when common law remedies are extended beyond their original scope – for instance making a robust remedy aimed at restoring possession apply to rights that technically cannot be spoliated due to their non-possessory nature.