Could The Mandament Van Spolie Remedy Be Instituted To Regain Possession Of Your Emails And Access To A Network Server? This was the question asked in the Supreme Court of Appeal (''SCA'') case of Blendrite (Pty) Ltd and Another v Moonisami and Another (227/2020) [2021] ZASCA 77; 2021 (5) SA 61 (SCA) (10 June 2021). In this case Mr Moonisami (first respondent) launched an application to have the company Blendrite (first appellant) liquidated. The company had two directors: Mr Moonisami and Mr Palani (second appellant). Mr Palani, operating under the assumption that Mr Moonisami had in fact resigned from the company, instructed Global Network Systems (the Second respondent) and web hosting entity which hosted the server and email addresses of Blendrite, to terminate the email and network access of Mr Moonisami to Blendrite's network. This instruction by Mr Palani to Global Network Systems prompted Mr Moonisami to institute an urgent application to the High Court to have his access to his email and access to the network server restored. The nature of the remedy sought therefore was spoliatory.
What Does It Mean When The Relief Sought Is Spoliatory In Nature?
Spoliatory relief refers to a remedy sought by institution of the mandament van spolie. This remedy is available to any person who has been unlawfully dispossessed of their property. To succeed with the institution of such a remedy, one would have to prove: 1) peaceful and undisturbed possession and 2) unlawful dispossession of such property.
The remedy does not concern itself with ownership, thus it is not necessary to prove that a person had any right to own or possess a property prior to instituting such an application. If successful in proving these two requirements, the dispossessed property is returned to the person from whom it was unlawfully removed.
This is in effect what Mr Moonisami required from the court and his request was upheld and granted by the lower court. Blendrite appealed to the SCA and the SCA was of a different view to that held by the High Court.
On appeal the SCA grappled with the more nuanced question of whether the prior access to an email address and company network amounted to quasi possession of an incorporeal thing which qualified for protection by a spoliation order.
Quasi possession refers to the possession of an incorporeal thing; in other words, there is no physical thing being possessed. Thus the access to the emails and the network server in the present case would constitute quasi possession as these are not physical things which Mr Moonisami possessed.
In dealing with this issue the court made reference to the only case which bore similarities to this one- Telkom SA v Xsinet (Pty) Ltd (92/2002) [2003] ZASCA 35 (31 March 2003). In that case, the court was of the opinion that the receipt of the telecommunications services arose from a personal right arising out of a contract and was not an incident of possession of the premises from which the respondent operated. Therefore, the respondent had not been dispossessed and could not rely on the mandament to enforce their personal right arising from of contract.
Similarly in this matter, the court was of the view that access to the emails and network server was not an incident of possession of any property of Mr Moonisami. Instead this all depended on the contested issue of whether or not Mr Moonisami was still to be considered a director of the company or not, a matter which required the analysis of his employment contract. The spoliation remedy could not be used to enforce his personal rights that arise out of his employment contract.
The court held that the prior use of the email and access to the network did not amount to quasi possession of incorporeal property and was therefore not protectable by use of the mandament van spolie. The appeal was therefore upheld and the decision of the High Court was set aside.
Conclusion
The value of the case lies in the confirmation it provides that the prior use of an email or access to a network server does not constitute quasi possession of incorporeal property. If you are no longer part of the organisation which you are currently a member of and you forget to note down any detail relating to potential clients for your own enterprise, the organisation is under no duty to allow you access to your emails, and you cannot rely on the mandament to claim back this access.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
