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06 Jul 2021
BY Aslam Moosajee AND Helena Graham

When does the spoliation remedy apply?

The South African Supreme Court of Appeal (“SCA”) recently handed down two judgments which provide some interesting insights into the interpretation and limits of the spoliation remedy.

 

What does “spoliation” mean?

A spoliation application, also known as a “true possessory remedy”, is used to restore lost possession of movable, immovable, corporeal and incorporeal property, where possession has been unlawfully deprived.

A spoliation application is often instituted on an urgent basis. To be successful, the application depends on  the applicant proving (on a balance of probabilities) that:

  1. they were in peaceful and undisturbed possession of the property; and
  2. the respondent (the spoliator) unlawfully deprived them of possession (committed a spoliation).

The right of the applicant to be in possession of the property is not considered by the court. The court only concerns itself with restoring matters to how they were before the unlawful dispossession took place. This is aimed at deterring people from taking the law into their own hands.

 

The Blendrite case: peaceful and undisturbed possession

In order to prove possession of movable and immovable property, the applicant must show that it had physical control over the property and that such physical control was exercised willingly. This is usually straightforward, except  where incorporeal property is the subject of a spoliation application.

The SCA judgment in Blendrite (Pty) Ltd and Another vs Moonisami and Another related to a matter that was previously handled by the High Court. The applicant, Mr Moonisami, who is one of two listed directors of the second respondent, Blendrite, instituted an urgent spoliation application for an order directing the first respondent, web hosting company Global Network Systems, to restore his access to Blendrite’s email and network/server.

Mr Moonisami’s access to his Blendrite email address and network/server had been terminated after his relationship with the third respondent, Dr Palani, who was also a director of Blendrite, had deteriorated. Dr Palani had informed Global that Mr Moonisami was no longer a director of Blendrite and that his email and company network/server access should be terminated with immediate effect. The High Court, satisfied that peaceful and undisturbed quasi-possession had been established by Mr Moonisami, granted the spoliation order.

On appeal, the SCA was required to determine whether the High Court  erred in finding that Mr Moonisami’s prior access to an email address and company network/server amounted to quasi-possession of incorporeal property, which qualified for protection by a spoliation order. The SCA upheld the appeal and set aside the High Court order. The SCA held that:

“The respondent did not possess any movable or immovable property in relation to his erstwhile use of the server or email address. Any entitlement to use the server and email address is wrapped up in the contested issue of whether the respondent remains a director of Blendrite and might relate to the terms of his contract of employment. It is a personal right enforceable, if at all, against Blendrite …The respondent’s prior use did not amount to quasi-possession of incorporeal property. It is therefore not protectable by way of the mandament. As such, the court of first instance erred in granting spoliatory relief.”

 

The Bisschoff case: unlawful dispossession

The key issue in Bisschoff and Others v Welbeplan Boerdery (Pty) Ltd was whether the threat of dispossession, in the form of a strongly worded letter, or the threat to approach a court to restrain possession, counted as unlawful deprivation in relation to the spoliation remedy.

The respondent, Welbeplan Boerdery (Pty) Ltd, had breached lease agreements that it had concluded with the appellants. Following Welbeplan’s breach, the appellants informed Welbeplan through two letters that they were cancelling the agreements. In the letters, Welbeplan was also told to refrain from trespassing upon the land. Welbeplan proceeded to bring a spoliation application and, based on the letters alone, was granted a spoliation order by the High Court. After the appellant had been refused leave to appeal by the High Court, leave to appeal was granted by the SCA.

The SCA held that the High Court erred in expanding the interpretation and application of the requirement of unlawful deprivation of possession. Exercising a contractual right, and threatening to approach a court for relief, is a far cry from unlawful dispossession of land, and is the antithesis of self-help, particularly where the letters containing these threats were prepared by legal representatives.

The SCA also pointed out that, if it does not end possession, the disturbance of possession must at the very least frustrate the complainant’s control over the property. Given that dispossession, and in particular unlawful dispossession, had not taken place, the SCA upheld the appeal and set aside the High Court order.

Although the requirements for a spoliation order are few and appear relatively simple to establish, the Blendrite and Bisschoff decisions highlight that the remedy is a limited one.

 

Aslam Moosajee

Dispute Resolution | Executive

amoosajee@ENSafrica.com

+27 82 461 5917

 

Helena Graham

Dispute Resolution | Candidate Legal Practitioner

hgraham@ENSafrica.com

+27 67 421 4346