The judgments concern the application of mandament van spolie, a remedy under South African law which protects against the unlawful deprivation of another person’s right to possession of property, be it movable or immovable.
For the mandament van spolie to apply, two requirements must be satisfied:
However, there is a distinction made in South African property law between possessing control over property and possessing rights in relation to that property, known as quasi-possession. This at times raises a question as to what rights can be protected by the mandament van spolie.
Servitutal rights are rights of use of property. The courts in South Africa have previously considered servitutal rights in the context of the termination of water supply. The court confirmed that the rights of water users were registered under the Water Act 54 of 1956 and therefore were statutory rights and fell under the protection of the mandament van spolie because it was not ‘a mere personal right’.
An important principle was highlighted in that case: “the mandament van spolie does not have a ‘catch-all function’ to protect the quasi-possession of all kinds of rights irrespective of their nature. In cases such as where a purported servitude is concerned the mandament is obviously the appropriate remedy, but not where contractual rights are in dispute or specific performance of contractual obligations is claimed”.
This principle was also illustrated in the ruling in the so-called Microsure case in 2010.
In that case the government paid pension funds due to pension beneficiaries to the respondent, and the applicants concluded contracts with the respondent to utilise the respondent's computer system to facilitate access by beneficiaries to their funds. The respondent provided the applicants with a merchant card which gave it access to the respondents’ computer system so as to give the beneficiaries access to their funds. A dispute arose and the merchant cards were de-activated.
The court dismissed the mandament van spolie application, noting that mere possession of a card which only facilitates access to a computer server did not satisfy the element of possession required under the remedy. The court instead considered that the applicants actually sought to achieve specific performance of a contractual obligation they were allegedly entitled to and which was facilitated by the merchant card.
Mandament van spolie in the context of the right to access was also considered in the case of Vital Sales Cape Town (Pty) Ltd v Vital Engineering (Pty) Ltd, Glen Andrew Pringle and Yvonne Gadney.
The alleged dispossession in this case occurred on 16 February 2021 when Vital Sales was denied access to servers and systems by Vital Engineering, Pringle and Gadney. Vital Sales was denied access due to the suspension of its branch manager.
Vital Sales applied to the High Court for an order for a mandament van spolie, by way of urgent application proceedings, requiring Vital Engineering, Pringle and Gadney to restore to it ‘possession’ of its information housed on a communal server, together with access to its emails and records on an accounting system. Vital Engineering, Pringle and Gadney argued that Vital Sales had breached an ‘arrangement’ by accessing the Vital Engineering’s proprietary and confidential information on the servers and systems, and that as a result of the breach Vital Engineering had to take reasonable steps to protect the information concerned.
The court referenced the 2007 case of De Beer v Zimbali Estate Management Association (Pty) Ltd and highlighted that the mandament van spolie is used to protect possession and not access, and that its purpose is to prevent parties taking matters into their own hands in respect of property they believe they have been unlawfully dispossessed of. The court considered that no such incident would, in the ordinary course of events, take place where a large number of persons have access, rather than possession, of the property in question.
The court also referred to the 2003 case of Telkom SA Ltd v XSInet (Pty) Ltd. In that case XSInet had physical possession of the communications system it was supplied by Telkom, such as cables, telephones and modems, but was considered to have been denied beneficial use of the equipment when it was denied access to the telecommunication services the equipment enabled.
The court in that case held that XSInet’s physical possession of the equipment had not been interfered with and that its beneficial use of the equipment was not covered by the mandament van spolie. The beneficial use was considered to arise under rights of contract instead.
In its judgment the court referred back to the Microsure case and cited the judge’s comments about how South African courts have expressed caution in relation to expanding the scope of the mandament van spolie in relation to intangible property.
After considering the earlier cases, the High Court ruled against Vital Sales. It held that the company neither held physical possession nor quasi-possession of the servers or software and that it only laid claim to being entitled to undisturbed access to its information on those systems. The court considered that it did not matter than Vital Sales paid to access those systems, it did not possess them, and that the company’s dispute with Vital Engineering, Pringle and Gadney was regulated by the contract they had signed and that those rights under the contract were not protected by the mandament van spolie.
The Supreme Court of Appeal (the SCA) recently endorsed the view expressed in the Vital Sales case in the case of Blendrite (Pty) Limited and Another v Moonsami and Another. The case focused on the termination of Moonsami’s email and network server access. Moonsami is a former director of Blendrite.
Moonsami had been granted the remedy of mandament van spolie at a lower court, but this was overturned by the SCA. The court considered that the prior use of the email address was not an incident of possession and any entitlement to use of the server and email address is dependent on the dispute relating to the contract of employment. As a result, Moonsami’s prior use did not amount to quasi-possession and could not be protected by the mandament van spolie.
The rulings affecting XSInet, Vital Sales and Moonsami highlight how the courts in South Africa will in certain instances take a narrow view of applicants’ rights to relief under the mandament van spolie and that in such cases it will be the law of contract rather than the law of property that will apply. The case law highlights the importance of establishing possession of property, rather than mere rights of access to it, to be entitled to relief under the mandament van spolie.
Co-written by Muhammed Somrey and Yasteel Balgobind of Pinsent Masons in Johannesburg. To contact Muhammed or Yasteel, please email [email protected] or [email protected].
