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[2021] ZAWCHC 67
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Vital Sales Cape Town (Pty) Ltd v Vital Engineering (Pty) Ltd and Others (3268 / 2021) [2021] ZAWCHC 67; 2021 (6) SA 309 (WCC); [2021] HIPR 168 (WCC) (19 April 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: 3268 / 2021
In
the application between:
VITAL SALES CAPE TOWN (PTY)
LTD
Applicant
and
VITAL ENGINEERING (PTY) LTD
First Respondent
GLEN ANDREW PRINGLE
Second Respondent
YVONNE
GADNEY
Third Respondent
Coram:
Wille, J
Heard:
12
th
April 2021
Order:
16
th
of April 2021
Reasons:
19
th
of April 2021
REASONS
WILLE,
J
:
INTRODUCTION
[1]
In these urgent opposed motion proceedings, the applicant sought an
order that the
respondents restore to it, ‘possession’ of
its information housed on a communal server
[1]
.
This, together with access to its emails and records on an accounting
system.
[2]
In short, the applicant’s intellectual
property was allegedly possessed through its access to these servers
and systems.
The applicant required access to the server and
the system, so it says, so as to conduct its business.
Alternatively, the
applicant sought an interim interdict to
restore its access to the systems and servers, pending the
institution of further proceedings
against the respondents.
[2]
The alleged dispossession occurred on the 16
th
of February
2021, when the applicant’s access to the servers and systems
was barred by the respondents.  It became common
cause that the
first respondent obstructed the applicant’s access to the
servers and systems on the 16
th
of February 2021.
The respondents’ case was that they were entitled to touch this
obstruction.  This, because
the applicant had breached an
‘arrangement’ by accessing the first respondent’s
proprietary and confidential
information on the servers and systems.
The first respondent averred that it was entitled to take all
reasonable and necessary
steps to protect its proprietary and
confidential information on the subject servers and systems.
This because of the alleged
breach by the applicant.
[3]
To
counter this, the applicant avers
that its alleged breach of the arrangement is irrelevant as the
spoliation remedy is aimed at
redressing unlawful self-help and
restoring the parties to their status
ante omnia
.  Further,
the applicant contends for the position that it never had access, nor
could it obtain access, to the first respondent’s
proprietary
and confidential information on the servers or systems.  This
may very well be a factual dispute, but more about
this later.
The trigger to the termination of applicant’s possession was
allegedly the suspension of the applicant’s
branch manager on
the 15
th
of February 2021.  The said branch manager
was believed to have been in league with the respondents.  This
then, was
the nub of the dispute before me on application.
[4]
On the 16
th
of April 2021
[3]
,
I issued out an order in the following terms:
1.
That condonation
is granted to the applicant in that the forms of service and the time
periods provided for in the rules of court
are dispensed with and the
matter is ordered to be determined as an ‘urgent’
application as provided for in the rule
6 (12) (a);
2.
That the
respondents’ applications to strike-out are dismissed and each
party shall be responsible for their own respective
costs in
connection with the applications to strike-out;
3.
That the second and
third respondents application for ‘mis-joinder’ is
granted and the applicant shall be liable for
the costs of and
incidental to the application for ‘mis-joinder’ on the
scale as between party and party as taxed or
agreed (including the
costs of two counsel, where so employed);
4.
That the
applicant’s main application as set out in paragraphs 1.2, 1.3,
and 1.4 of the notice of motion dated the 22
nd
of February 2021, is dismissed;
5.
That pendente lite
(pending the outcome of the action referred to below), the first
respondent is interdicted and restrained from
preventing the
applicant to ‘undisturbed access’ the communal server,
emails and Syspro systems administered by the
first respondent. This
access shall be further limited to only access to the applicant’s
proprietary information emails and
accounting information housed on
the communal server and Syspro system.
6.
That applicant is
prohibited from access to any of the first respondent’s
proprietary and confidential information located
on the Syspro system
or housed on the communal server;
7.
That the applicant
is ordered to issue out action proceedings within (21) court days of
date of this order against the first respondent
in order to determine
and ventilate the contractual disputes between the applicant and the
first respondent as broadly formulated
in the application
proceedings;
8.
That all other
issues of costs shall stand over for determination by the trial
court;
9.
That in the event
that the applicant fails to comply with the provisions of paragraph
(7) of the order above, then in that event,
the interim order
pendente lite shall automatically lapse for want of prosecution of
the action proceedings and the first respondent
will be afforded an
opportunity to set down all remaining issues of costs for
determination by the court (before Wille J), on reasonable
notice to
the applicant and the court.
PRELIMINARY
ISSUES
[5]
The respondents contended for the following:  that applicant’s
application
was materially defective for misjoinder:  that this
court did not have the required jurisdiction to adjudicate and
determine
the relief sought by the applicant and that the spoliation
relief sought was incompetent.  This, because the applicant
exercised
a mere personal right which was based upon an ‘arrangement’
that the applicant had concluded with the first respondent.
[6]
Further, it was advanced that the applicant was not entitled to any
alternative temporary
interdictory relief.  In addition, the
respondents advanced two applications to strike out certain averments
in the applicant’s
founding affidavit and replying affidavits,
while the applicant, in turn, applied to admit certain evidence of a
‘hearsay’
nature.
THE STRIKING OUT APPLICATIONS
[7]
In the first instance, the respondents sought an order to strike out
certain paragraphs
of the applicant’s founding affidavit on the
basis that they contained hearsay evidence.
[4]
Secondly, the respondents sought to strike out certain hearsay
evidence relating to the Syspro system’s operation.
[5]
It was also contended that the latter emerged as ‘new’
matter for the first time by way of reply.
[8]        Turning for a moment to
the context of the material sought to be struck out in connection

with the first application, the following:  this related to
evidence of a hearsay nature concerning certain enquiries made
by the
employees of the applicant to establish if the servers and systems
were also inaccessible by other companies in the group:
the
source of this information was only identified by the applicant in
reply:  the truth or otherwise of this hearsay
material did not
seem to be in dispute.  In my view, nothing turned on the
introduction or otherwise of this material.  This,
because the
introduction thereof was not to the prejudice of the respondents.
[9]        As far as the replying
affidavit was concerned, the respondents sought to strike
out most of
the averments in the applicant’s replying affidavit.  It
was the applicant’s case that the disputed
passages in the
replying affidavit served primarily to refute certain of the
contentions made by the respondents.  The main
proposition was
that, in any event, the applicant sought an order to restore its
peaceful and undisturbed possession of its intellectual
property,
which was, in itself, nothing new.
[10]
Further
,
precisely because of the challenge that the applicant failed to
allege that the second and third respondents had a direct and

substantial interest in the merits of the application, the applicant
proceeded to set out further facts relating to the second
and third
respondents’ functions to refute these suggestions, in reply.
It is the respondents’ case that applicant’s
access was
by agreement to the effect that the applicant was prohibited from
accessing the first respondent’s proprietary
and confidential
information located on the server and systems.
[11]      Further, it is alleged that
contrary to that agreement, the applicant attempted to unlawfully

breach and obtain the first respondent’s proprietary and
confidential information.  In reply, the applicant contends
for
the position that it was impossible for the applicant to access any
of the first respondent’s information on the system
and that
this status was confirmed by Syspro, itself.
[12]      A court may in its discretion
allow new matter in a replying affidavit having regard to:

whether all the facts necessary to determine the new matter raised in
the replying affidavit were placed before the court:  whether

the determination of the new matter would prejudice the respondent in
a manner that could not be put right by orders in respect
of
postponement and costs:  whether the new matter was known to the
applicant when the application was launched and whether
the
disallowance of the new matter would result in unnecessary wasted
costs.
[13]
In terms of the provisions of Section 3(1)(c) of the Law of Evidence
Amendment Act
[6]
,
the court has a discretion to admit hearsay evidence if the evidence
itself is not contentious and the information is in the public

domain.  I formed the view that the evidence was neither
contentious, was in the public domain, and nor could there be any

prejudice to its admission.  Besides, the respondents tendered
no alternative facts relating to the system’s access

requirements.
MISJOINDER
[14]
The respondents alleged misjoinder.  They contended that neither
the second nor third respondent
should have been joined, because the
applicant failed to disclose a cause of action against any of them
for the relief it sought.
The second respondent is the first
respondent’s managing director.  The third respondent is
the administrator
of the servers and systems.  The first
respondent’s employees report to her.  The argument by the
applicant is:
that it was necessary for the applicant in the
spoliation proceedings to seek relief against any co-spoliators
[7]
:
that an order against the second and third respondents was required
to give effect to the order and that they clearly had
a direct and
substantial interest in the proceedings.  The latter averments
were only made out in reply.
[15]
In the applicant’s founding affidavit were absent allegations
which established a cause
of action against either the second or the
third respondent.  These latter respondents were joined
ostensibly because they
are employed by the first respondent.
There was no material before me to suggest that the second and third
respondent were,
at all material times, acting outside the course and
scope of their employment with the first respondent.  Besides,
any proposed
order against the first respondent would ordinarily be
subject to execution, without the involvement of either the second or
third
respondent.
JURISDICTION
[16]
Upon an
analysis
of the common cause facts, it seemed to me to be
accepted:  that the applicant obtained access to the Syspro
accounting system
at its business premises in Cape Town:  that
it exercised its access to all its proprietary information on the
servers and
systems at its business premises in Cape Town:  that
its ‘possession’ was disturbed by the respondents at its
business premises in Cape Town and that its employees were denied
access to the server and the system, in Cape Town.
[17]
Section 21(1) of the Superior Courts Act
[8]
,
provides, inter alia, that a division:
‘…
has
jurisdiction over all persons residing or being in, and in relation
to all causes and all offences triable within, its area
of
jurisdiction and in all other matters of which may according to the
law take cognisance…’
[18]      The respondents argue that the
alleged cause of action did not arise within the geographical
area of
the jurisdiction of this court.  The argument is that there
existed insufficient jurisdictional connecting factors
having been
firmly established in favour of the applicant.  This enquiry
depends,
inter alia
, on the following:  on the nature of
the relief claimed:  on the nature of the proceedings, or in
some cases, on both
these enquiries.  In my view, taking into
account these peculiar circumstances, it would be entirely
permissible for this
court to have the requisite jurisdiction to
grant the interim relief sought and for an appropriate order to be
executed at the
first respondent’s offices, in Gauteng.  I
say this also because, in the event of a failure by the first
respondent
to comply with the interim order, the order would be
rendered sufficiently effective, so as to confer jurisdiction on this
court.
[19]
In my view, this is precisely so because the ambit of jurisdiction
conferred falls to be determined
by the jurisdictional connecting
factors recognised by the common law.
[9]
The cause of action requirements in common law, need not arise
wholly within the area of jurisdiction of the relevant court
in order
for that court to have jurisdiction based on the
ratio
rei gestae
.  The place of
performance of part of the contract, constitutes a jurisdictional
connecting factor, even if the contract was
concluded outside the
court’s area of jurisdiction.
[10]
The respondents’ arguments in connection with this court’s
lack of jurisdiction may very well have been of a
weightier
consideration, in the event that I was with the applicant in the main
relief that it sought in its notice of motion.
Further, the
arguments for lack of jurisdiction, were somewhat diluted in view of
my findings in connection with the misjoinder
of the second and the
third respondent.
[20]      In the light of the above, the
court may assume jurisdiction to grant an interdict, no matter
if the
act in question is to be performed or restrained outside the court’s
area of jurisdiction.  We live in times
of rapidly developing
‘information technologies’ and we need to adapt our
practices and guard against practices that
render court orders
ineffective for mere technical arguments in connection with issues of
jurisdiction.
THE MANDAMENT VAN SPOLIE
[21]
The spoilation remedy is available to any despoiled person who
exercises physical control over
the property with the intention of
deriving some benefit therefrom.
Possession
is the most important element.  Possession suffices if the
holding was with the intention of securing some benefit
for the
applicant.  It is actual physical possession that is protected
and not ‘
the
right’
to
possession.  The applicant bears the onus of demonstrating
effective physical control over the property.
[11]
[22]
In
Shaw v Hendry
[12]
,
the applicant was a
builder and alleged that he was in possession of a house as a result
of a builder's lien.  He was unable
to complete certain plumbing
work and gave over a key to enable another plumber to have access.
The plumber and the respondent's
father thereafter had access
and under these circumstances, it was held that no possession was
established.
[23]
More recently in
De
Beer v Zimbali Estate Management Association (Pty) Ltd
[13]
,
it was held as
follows:
‘
A summary of the above
cases would seem to me to indicate that the mandament is there to
protect possession, not access. Such possession
must be exclusive in
the sense of being to the exclusion of others. The possession of keys
by a multiplicity of parties waters
down their possession, and in the
present case it becomes so dilute that it ceases to be the sort of
possession that is required
to achieve the protection of the
mandament. It must be recalled that the real purpose of the mandament
was to prevent breaches
of the peace. If someone is in exclusive
possession and exercises such possession, then deprivation thereof
can, and often does,
lead to a breach of the peace. No such breach
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’
[24]
On the facts of this matter, it could not have been seriously
contended by the applicant that
it was ever in physical possession or
quasi-possession of the servers and the Syspro system.  Further,
factually the applicant
only laid claim to being entitled to
undisturbed access.  This was premised on a reciprocal payment
by the applicant for the
use of these services.  In my view,
this matter had less to do with the facts and legal reasoning as set
out in
Moonisami
.
[14]
I was rather persuaded by the findings in
Xsinet
[15]
and
Microsure
[16]
.
I say this because, in
Xsinet,
the
nub of the argument in the SCA eventually was this:
‘…
Xsinet
was in possession of the system, including the lines, telephones and
modems installed at its premises as well as electronic
impluses, and
that it made use of them in the conduct of its business. Disconnetion
denied Xsinet access to the beneficial use
of its equipment, which,
so the argument goes, was an act of spoliation.  There is no
suggestion that Telkom interfered in
any way with Xsinet’s
physical possession of its equipment’
[17]
[25]
This reasoning was further eloquently formulated by Koen J, in
Microsure
as follows:
‘
Our
Courts have cautioned against widening the category of incorporeals
properly capable of protection by the mandament, understandably
so,
given the robust nature of the relief where no enquiry into the
merits of the particular dispute will be entertained’
[18]
[26]
Spoliation is by its very nature in the form of final relief.
This being so, I was obliged,
in these circumstances, to accept the
version of the respondents.  This, inter alia, because the use
of these services by
the applicant was contractually regulated.
On this score, I accepted that there existed a contractual dispute
between the
applicant and the first respondent.  This is yet
another reason, why I found that the applicant had not made out a
case for
spoliation relief.
THE
INTERIM INTERDICT
[27]
In the alternative
,
the applicant sought an interim interdict.
The requirements for a right
prima facie
established,
though open to some doubt, involves two stages.  Once the
prima
facie
right has been assessed that part of the requirement which
refers to the
doubt
involves a further enquiry in terms
whereof the court looks at the facts set up by the respondent, in
contradiction of the applicant’s
case and, if there is a mere
contradiction or unconvincing explanation, then the right will be
protected.  Where, however,
there is serious doubt, then the
applicant cannot succeed.
[28]
The applicant has (20) employees and conducts its business as part of
a group of companies.
[19]
They conduct the business of the manufacturing and supply of
mainly steel products throughout South Africa.  The applicant’s

case was that it relied on the information it possessed and its
access to the communal servers and systems
[20]
.
These were administered by the first respondent.
[29]
The servers and systems contained the applicant’s intellectual
property which, included
its employees’ emails relating to the
business of the applicant, and a host of information on the Syspro
system.  This,
all comprises the property of the applicant and
the applicant required access to it, to conduct its business.  In
addition,
the applicant paid for access to (6) ‘seats’ on
the Syspro system.  These (6) employees could access the Syspro

system by way of unique passwords.  The other companies (which
form part of the group of companies), also used the servers
and
systems to conduct their businesses.  Each company in the group
only had access to its own documents on the communal server,
and to
its own emails.  The only party that enjoyed unlimited access,
was the first respondent.
[21]
[30]      The applicant enjoyed peaceful and
undisturbed access to its intellectual property via the means
of the
server and systems until the morning of the 16
th
of
February 2021.  This access was then summarily interrupted.  The
applicant’s case is that this followed ‘hot
on the heels’
of the suspension of the applicant’s branch manager on the 15
th
of February 2021.  On the following morning, the applicant’s
employees experienced problems with their access to the
server.
Another branch office was then contacted, and it was confirmed
that ‘Vital Durban’ was operating without
any issues of
access to the server and the systems.  On the day following, it
became apparent that the first respondent had
terminated the
applicant’s access to the server and systems.  A flurry of
legal correspondence followed.  Initially,
the first
respondent’s attorneys responded in the following fashion:
‘
Our
client denies that it has “locked your client out” from
the Syspro system’
[31]
By this denial, the first respondent later became somewhat hoisted by
its own petard.  I
say this because, the first respondent
thereafter was driven to concede that it had terminated the
applicant’s access to
the servers and systems.  This was
for ‘security reasons’ and allegedly shortly
thereafter
[22]
,
the first respondent transferred an amount of R886,000.00 from the
applicant’s bank account to the first respondent’s
bank
account. This, without the consent of the applicant.
[32]
Besides, the respondents admitted that they terminated the
applicant’s access to the servers
and systems because, so they
contended, the applicant had breached an ‘arrangement’
with the first respondent in terms
of which the applicant enjoyed its
access to the server and systems.  The breach contended for was
that the applicant may
not access the first respondent’s
proprietary and confidential information.  According to the
respondents, the applicant
acted unlawfully in attempting to access
the first respondent’s proprietary and confidential
information.  This was
and is clearly a factual dispute.
It was against the canvass of these disputed facts that I considered
the alternative relief
contended for by the applicant.
[33]      Nevertheless, I was persuaded that
the applicant made out a compelling case that it, was as
a fact,
unable to access the first respondent’s proprietary and
confidential information stored on the server and systems
or any
other information belonging to any of the other companies of the
group.  Simply put, access to the applicant and its
employees
was limited to the applicant’s own information on the systems
and servers.
[34]      Indeed, it is so that
the
applicant’s intellectual property is housed on the
servers and systems administered by the first respondent.
Undoubtedly,
the applicant required this intellectual property
to continue to effectively run its business activities.  The
balance of
convenience accordingly favoured the granting of the
interim relief contended for in the alternative.  This because,
the applicant’s
intellectual property on the first respondent’s
servers and systems, was deserving of protection.  In contrast,
no harm
would be suffered by the first respondent, if the interim
relief fell to be granted.  Also, the manner in which I had
formulated
the order in connection with the interim relief, was so
designed as to allay any fears expressed by the first respondent
regarding
the alleged violation of its rights in connection with
their intellectual property and confidential information, which also
deserved
protection.
[35]
On the facts, irreparable harm was being suffered by the applicant
and its business may very
well have faced imminent closure if it was
not afforded urgent interim relief.  This was fortified by the
fact that the first
respondent conceded that it had terminated the
applicant’s access to the server and systems.  What was
also of some
significance, was that this concession was belatedly
made at a very late stage in the proceedings when the proverbial
‘shoe
pinched’.
[36]      I stood accordingly persuaded that
a case was made out for an interim order interdicting and
restraining
the first respondent from denying the applicant access to the servers
and systems.
[37]      These are then my reasons for the
order granted on the 16
th
of April 2021.
E
D WILLE
(
Judge
of the High Court)
[1]
The ‘servers’
[2]
The
‘
Syspro’
systems
[3]
Due to the urgent nature of the relief
contended for by the applicant
[4]
The ‘first’ application to strike out
[5]
The ‘second’ application to
strike out
[6]
Act
45 of 1988
[7]
Monteiro and Another v Diedricks
(case no 1199/19)
ZASCA (2 March 2021) at paragraphs [53] to [59]
[8]
Act 10 of 2013
[9]
Gallo Africa Ltd v Sting Music (Pty) Ltd
2010 (6) SA
392
(SCA) at 333 C
[10]
Travelex Limited v Maloney
(823/15) ZASCA 128 (27
September 2016) at para [22]
[11]
Yeko v Qana
1973 (4) SA 735
(A) at 739H - 740A.
[12]
1927
CPD 357
[13]
De Beer
v Zimbali Estate Management Association (Pty) Ltd and Another
2007
(3) SA 254
at para [54]
[14]
Dharamlingum Moonisami v Global Network
Systems (Pty) Ltd and others
(Kwazulu-Natal
Local Division, Case Number D5815/19 - 4 October 2019)
[15]
Telkom SA Ltd v Xsinet (Pty) Ltd
2003 (5) SA 309
(SCA)
[16]
Microsure (Pty) Ltd and Others v Net 1
Applied Technologies South Africa Ltd
2010
(2) SA 59
(N)
[17]
Xsinet
at 314 C
- J
[18]
Microsure
para
[19]
[19]
The Vital Group
[20]
Which are hosted by third parties
[21]
This may be a further signal as to who was
in ‘possession’ of the server and the system
[22]
On the 22
nd
of February 2021