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[2019] ZAKZDHC 18
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Moonisami v Global Network Systems (Pty) Ltd and Others (D5815/19) [2019] ZAKZDHC 18 (4 October 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: D5815/19
In
the matter between:
DHRAMALINGUM
MOONISAMI
Applicant
and
GLOBAL
NETWORK SYSTEMS (PTY) LTD
First
Respondent
BLENDRITE
CHEMICALS (PTY) LTD
Second
Respondent
MANIVASAN
PALANI
Third
Respondent
ORDER
I
make the following order:
1.
The first respondent be and is hereby directed to
ante omnia
restore the applicant’s access to the second respondent’s
email and network/server, forthwith.
2.
The second and third respondents are to pay the costs of the
application on an attorney-client scale, jointly
and severally, the
one paying the other to be absolved.
JUDGMENT
Chetty
J:
[1]
The applicant launched an urgent application on 19 July 2019 for a
rule
nisi
seeking the following relief:
a. That
the first respondent be and is hereby directed to
ante omnia
restore the applicant’s access to the to the second
respondent’s email and network/server, forthwith.
b. That
the respondents pay the costs of the application on an
attorney-client scale, jointly and severally, the
one paying the
other to be absolved.
c. That
the above relief operate with immediate effect pending the return day
of the rule, or any further extension
thereof.
[2]
The application was opposed on 19 July 2019, with an Order granted by
Moodley J adjourning the matter
to 31 July 2019 for allocation as an
urgent opposed application. In addition, the second and third
respondents indicated their
opposition to the application, and were
directed to deliver answering affidavits together with heads of
argument by certain specified
dates. Moodley J recorded that the
urgency of the application was still in dispute. The matter then
served before Henriques J on
31 July 2019 when it was allocated
preference on the opposed roll. It was recorded that in the event of
the matter not being resolved
without a referral to oral evidence,
the applicant was to show cause why a punitive award of costs ought
not to be granted against
him, including an order for costs against
his attorney
de bonis propriis
.
[3]
At the time when the matter came before me, heads of argument had
been filed by the
applicant in accordance with the time periods set
out in the order of Moodley J. However, it is necessary that I record
my displeasure
at the heads of argument filed by the respondents
which comprise of three paragraphs containing one sentence each, with
the first
paragraph listing six cases, and the second paragraph
listing a further two. The last paragraph was simply a statement that
the
application be dismissed with costs.
[4]
The heads of argument were drawn by the second and third respondents’
attorney,
and with which their counsel, Mr
Manikam
, associated
himself with. The heads of argument were at odds with what is
set out in the Practice Direction for this Division,
particularly
Practice Direction 9, dealing with heads of argument in opposed
applications. In
Caterham Car Sales & Coachworks Ltd v Birkin
Cars (Pty) Ltd & another
[1998] ZASCA 44
;
1998 (3) SA 938
(SCA) para 37
Harms JA explained that heads of argument means “points”
of argument, and not a dissertation. What was
however required was
‘argument’, which he described as involving “a
process of reasoning which must be set out
in the heads. A recital of
the facts and quotations from authorities do not amount to
argument.”
[5]
The heads of the respondents did not pay any heed to what was set out
in Practice
Direction 9.4.1, nor did the cases cited therein indicate
which pages or paragraphs the court ought to direct its attention to.
In the circumstances where counsel associate themselves with such
heads, this is not only unhelpful, but also disrespectful to
the
court. It is tantamount to a contemptuous attitude to the court.
Despite the respondents not having complied with the Practice
Direction, I was of the view that the matter should nonetheless
proceed inasmuch as the applicant had complied and was desirous
of
having the matter heard on the day.
[6]
The applicant approached court on an urgent basis seeking relief in
the form of a
mandament van spolie contending up until 17 July 2019
he was in peaceful and undisturbed possession of his access to the
company’s
internet server and his email address, namely
KC@blendrite.co.za
.
It is not in dispute that the first respondent which is a web hosting
company, hosts the internet server and email addresses
of the second
respondent. It is also common cause that the applicant and the
third respondent jointly funded the formation
of the second
respondent (‘Blendrite’) in and during 2008. The
applicant occupied the position of managing director
of Blendrite,
with the third respondent assuming position of financial director.
Blendrite appears to be in the business of the
manufacture of
chemicals for the petroleum industry. Over the years it has grown
into a thriving business, and as often happens
with financial
success, it brought with it strife amongst its only two directors,
being the applicant and the third respondent.
[7]
Matters reached a stage where the two directors were involved in
unending litigation,
most recently with the applicant having brought
an application for the liquidation of the company, which is opposed
by the third
respondent. At the same time the third respondent also
brought proceedings against the applicant and ABSA Bank for an order
to
unfreeze Blendrite’s bank accounts in order for it to pay
salaries for the month of May 2019, as well as creditors in an amount
of approximately R7,2 million. In addition, in terms of the Order
granted by Lopes J on 30 May 2019, Blendrite was directed to
pay the
applicant his salary in the amount of R37 447.82, for the months
of April and May 2019 respectively. The relevance
of this will
become apparent from what appears below.
[8]
The feuding amongst the directors also took on an attempt by the
third respondent
to remove the applicant as a director of Blendrite.
These disputes are ongoing and are currently before the court.
[9]
On 11 July 2019 the attorney for Blendrite wrote to the first
respondent as follows:
‘
We act for
Blendrite Pty Ltd.
Our instructions are
that:
1.
Mr Moonisami is no longer a director of Blendrite, having
retired.
2.
The email and company network/server access that Mr Moonsami
enjoyed as a director and employee of the company must be terminated
with immediate effect.
3.
In
the circumstances, we confirm our client’s instruction to you
to terminate Mr Moonisami’s comedy email and network/server
access with immediate effec
t.’
[10]
As a result of this instruction to the first respondent, the latter
obliged and immediately disconnected the applicant
from having access
to the company email and internet server. The applicant
contends that he is unable to get access to any
of his business
emails and information archived on his computer, including costing
and formulations pertaining to the business
of Blendrite. He states
that the company email address was his only means of communicating
with customers and suppliers of Blendrite.
[11]
The applicant instructed his attorney, who wrote to the first
respondent requesting that the applicant be reconnected
to the
network. The first respondent was caught in an invidious
position as it has a service contract with Blendrite and
were
cautious that if they were to accede to the request, they could be
exposed to a claim by Blendrite. Rather than become
involved in
the litigation between the parties, the first respondent’s
view, and correctly so in my view, was that the applicant
should
approach the court for an order directing the first respondent to
reconnect him to the internet server. As such, the
first
respondent does not oppose the relief sought by the applicant.
[12]
The applicant contends that he meets the requirements for spoliation
in accordance with the traditional test in
that he was in possession
of the ‘property’ and that the second and third
respondent, through their instructions to
the first respondent,
deprived him of possession forcibly or wrongfully, and against his
consent. In
Yeko v Qana
1973 (4) SA 735
(A) at 739G-H
the court held that “all that the
spoliatus
has to
prove, is possession of a kind which warrants the protection accorded
by the remedy, and that he was unlawfully ousted”.
That is the
basis on which the applicant approached this court.
[13]
The second and third respondents filed an answering and a
supplementary affidavit. The crux of the opposition
to the
relief is the contention that the applicant was removed as a director
with effect from 22 March 2019 and that he has no
basis to approach
the court for spoliation. In this regard, the second and third
respondents rely on a company resolution
dated 12 June 2008 in which
both directors agreed that they would continue to hold their
respective positions as directors until
age 65. Based on mutual
agreement, the age limit could be moved – I assume, upwards, to
retire after 65. On that basis,
the second and third respondents aver
that a letter was addressed to the applicant in March 2019 referring
to an agreement reached
on 23 March 2018 that the applicant would
retire a year later on 22 March 2019. It is somewhat odd that
where the parties
would have reached agreement on a matter as
important as this, there is no minute of this decision shortly after
the event in March
2018. Instead, a written recordal surfaced a
year later.
[14]
The second and third respondent’s papers deal extensively with
the issue of the applicant’s directorship
of Blendrite and
their contention that as of 22 March 2019 he was no longer a director
and consequently had no basis to use or
retain access to the computer
hosting the company’s email server or acquire access to the
internet via their server.
Allied to this is the respondents’
contention that upon termination of employment, employees are not
entitled to email services
or to access Blendrite’s web server
or their client information. I accept that this is the position
generally when
employees are suspended or terminated. However,
in this case one is dealing with a scenario where one director has
purported
to unilaterally terminate the directorship of the other and
in circumstances where there is a flood of litigation around the
issue.
Added to this is that the Companies and Intellectual
Property Commission (‘CIPC’) documents still record the
applicant,
as at April 2019, as being one of two directors of
Blendrite. The response of the third respondent to this is that
he is
in the process of rectifying the records of the CIPC to have
the applicant’s name deleted.
[15]
The second and third respondents dwell in their answering affidavits
on matters totally irrelevant to a mandament
van spolie and raise
issues relating to notices that the applicant received from the
municipality’s fire department which
he did not bring to the
third respondent’s attention; the use of the company email to
send information to clients and acting
adverse to Blendrite’s
interest; the applicant’s attempts to discourage customers from
continuing to do business with
Blendrite; the freezing of Blendrite’s
bank account; the rescue of Blendrite from the brink of collapse
under the watch of
the applicant and numerous instances of his
alleged contraventions of the Companies Act. All of this,
despite the submission
that the ‘preliminary’ answering
affidavit was drafted in haste. The supplementary affidavit continues
the theme of
the initial answering affidavit and deals with the
liquidation proceedings pending in this court under case number
D3233/2019;
the application before Lopes J on 30 May 2019 to unfreeze
Blendrite’s bank account and the ulterior motive attributed to
the applicant in pursuing the liquidation application; attempts by
the applicant to damage the reputation of Blendrite amongst large
petro-chemical companies like Engen and Total and a photograph of the
applicant during a fire safety inspection by the municipality
on 28
May 2019.
[16]
I have set out in some detail the issues above canvassed by the
second and third respondents to illustrate the
extent to which they
have incorrectly interpreted or misconstrued the legal basis on which
the applicant came to court. The
applicant in his replying
affidavit quite correctly points out that the respondents are
repetitive and have canvassed matters which
have no relevance to the
determination of whether a mandament is capable of being granted by
this court. The applicant correctly
submits that the issue of
his alleged termination as a director from Blendrite has nothing to
do with the relief sought.
Nor, for that matter are the alleged
breaches of the Companies Act. In essence, it was submitted that the
respondents have totally
misconstrued the nature of this application,
the purpose of which has nothing to do with attempting to obtain an
order for specific
performance on the contract held with the first
respondent or as a means of addressing the disputed directorship.
[17]
The applicant maintains that he was in undisturbed ‘possession’
or enjoyed uninterrupted
access to his email on the company’s
web server until this was interrupted by the first respondent, on the
instructions of
the second and third respondents. What is
important is the third respondent’s contention that the
applicant retired
in March 2019. If on the third respondent’s
version the applicant was to retire at age 65, he would have turned
65 in 2017,
based on the information contained in the CIPC forms.
There is no explanation of what his status was after reaching the age
of
65. What is known is that according to the records of the
CPIC he remains a director. Even after a letter had been
communicated to him that his directorship would come to an end on 22
March 2019, he remained at Blendrite. This immediately
begs the
question what was his status from 23 March to 17 July 2019?
According to Mr
Manikam
, the applicant was “nothing”
in relation to Blendrite after 23 March 2019. If this is so, it
does not explain
why Lopes J granted, as part of the Order on 30 May
2019, relief that the applicant be paid his
salary
for the
months of April and May 2019 in the amount of R37 447.82 per
month. Moreover, if his directorship came to an
end on 22 March
2019, why was his email and computer access to Blendrite not
terminated on that date? On the basis of emails, copies
of which have
been put up by the third respondent, it is evident that the applicant
was in communication with the fire department
and clients up to June
2019. This runs counter to the assertion by the third
respondent’s counsel that the applicant
was “nothing”,
or a person without status at Blendrite. There is also nothing
on the papers to gainsay the applicant’s
contention that he was
enjoying undisturbed use and access to his emails on the company web
server until 17 July 2019 when it was
interrupted.
[18]
I am satisfied that the applicant meets the requirement of being in
peaceful and undisturbed
possession. It seems to me that the
vexed issue is whether the applicant’s access to the company’s
web server
and his company email address can be described as property
capable of protection via the mandament van spolie. Possession
in the ordinary sense of the word conveys the impression of actual
control over a corporeal thing. The issue which has arisen in
recent
times is that of quasi-possession. In other words, what kind of
rights are capable and worthy of protection of the mandament
van
spolie, and how does one possess such a right. The Supreme Court of
Appeal in
Firstrand Ltd t/a Rand Merchant Bank & another v
Scholtz NO & others
2008 (2) SA 503
(SCA) stated the
following on this issue:
‘
[13]
The mandament van spolie does not have a “catch-all function”
to protect the
quasi-possessio
of all kinds of rights
irrespective of their nature… [it is not the appropriate
remedy] where contractual rights are in dispute
or specific
performance of contractual obligations is claimed… The right
held in
quasi-possessio
must be a “gebruiksreg”
[right of use] or an incident of the possession or control of the
property.’ (Footnotes
omitted)
[19]
Telkom SA Ltd v Xsinet (Pty) Ltd
2003 (5) SA 309
(SCA) was a
case in which the applicant, Xsinet, was an internet service
provider. Telkom supplied Xsinet with bandwidth.
When a
dispute arose between the parties over payment in respect of the
connectivity service, Telkom disconnected the telephone
and bandwidth
systems. Xsinet contended that the services had been terminated
without their consent and they approached the
court to restore the
connection, applying for a mandament van spolie. Telkom
contended that in effect what the applicant
was seeking to do was use
the mandament as a basis for obtaining specific performance of a
contractual obligation. This argument
is similar to that
advanced on behalf of the third respondent in the present matter,
although it did not articulate this defence
either in its heads or in
the papers. The High Court came to the assistance of Xsinet
holding that bandwidth was an incident
of the applicant’s
possession and granted the mandament. The SCA in para [10]
described Xsinet’s claim as suggestive
of a “right to the
continuous connection of the telephone and bandwidth systems, that it
was in quasi-possession of the systems
by making use of the services
and that it has discharged the
onus
of proving that the
disconnection amounted to unlawful interference with its
quasi-possession.” While the SCA found
that the internet
services were not an incident of possession, like the use of
electricity and water in respect of occupation of
certain rented
premises, Jones AJA noted the following in relation to the interest
sought to be protected:
‘
[9] Originally,
the mandament only protected the physical possession of movable or
immovable property.
But in the course of centuries of development,
the law entered the world of metaphysics.
A need was felt to
protect certain rights (tautologically called incorporeal rights)
from being violated. The mandament was extended
to provide a remedy
in some cases. Because rights cannot be possessed, it was said that
the holder of a right has "quasi-possession"
of it, when he
has exercised such right. Many theoretical and methodological
objections can be raised against this construct, inter
alia that it
confuses contractual remedies and remedies designed for protecting
real rights. However, be that as it may, the semantics
of
"quasi-possession" has passed into our law. This is all
firmly established.’ (My emphasis)
It
would seem that although the SCA upheld the appeal in favour of
Telkom, the court accepted that with new developments in technology,
the mandament may be resorted to where a person has quasi-possession
of a right.
[20]
The leading case on the quasi-possession of incorporeals is
Bon
Quelle (Edms) Bpk v Munisipaliteit van Otavi
1989 (1) SA 508
(A)
in which the court was approached for a mandament in respect of the
interruption of the flow of water under a servitude. It
was
contended that a servitude is incapable of possession in the same way
that one would have possession over movable or immovable
property.
However, Hefer JA found that possession had existed in the
exercise of the professed right and that it was not
necessary for an
applicant to prove the existence of the right in order to get a
spoliation order. The ratio decidendi of the judgment
is that it is
sufficient for an applicant to prove quasi-possession of an alleged
servitude by showing an outward manifestation
of its use. An
interference with such quasi-possession is an act of spoliation. See
Duard Kleyn
The Protection of Quasi-Possession in South African
Law
, Jurisprudentia, Vol.4,pp1-18. In the present matter,
Mr
Dayal SC
for the applicant, relied on
Bon Quelle
as
reflecting the position of our law as it stands in relation to
incorporeal property such as access to the internet or email.
Bon Quelle
is also authority for the proposition that it is
not necessary in mandament proceedings to prove the existence of a
right.
To the extent that the second and third respondents
allege that the applicant has retired as a director and therefore has
no right
of access to Blendrite’s computer systems, it is not
necessary for him to prove such right. It is sufficient for the
purposes of the mandament that he enjoyed undisturbed access to his
email facilities at the time when they were terminated, pursuant
to
the letter from the attorneys. The enquiry into the right of
the applicant in
Zulu v Minister of Works, KwaZulu,
and
others
1992 (1) SA 181
(D) was criticised, where the applicant
applied for a mandament following the interruption of water flow
derived from the royal
household. While affirming that the exercise
of rights of servitude were protected by a mandament, Thirion J held
that the restoration
of a “
non-servitutal right of having
water supplied
” was not protected. A similar approach
was followed in
Plaatjie & another v Olivier NO & others
1993 (2) SA 156
(O) where the court appeared to be cautious to
expand the protection of the mandament “to the exercise of
rights in the widest
sense.”
[21]
Without delving into the merits of the matter, I enquired during the
course of the hearing from
Mr
Manikam
, on the basis that the
dispute of the applicant’s directorship is already the subject
matter of other litigation, whether
the respondents concede that the
applicant requires access to his email and the web server in order
for him to carry out his duties
as a director. The concession
was not made. However, in the world of information technology
in which we live, where
notices and court processes can be served by
electronic mail, and where receipt of mail via the post office is
almost archaic,
access to the internet and one’s emails
constitute an indispensable facet of daily business operations. The
internet has
emerged as the foremost vehicle for handling corporate
communication. It is not necessary for me in these proceedings to
make any
finding as to whether the applicant was a director of
Blendrite at the time when his email access was terminated.
What is
sufficient is that access to his email and company server and
internet systems was, in the words of Jones AJA in
Telkom
v
Xsinet
, an “incident of possession”. In
Xsinet
at
para 12 the Court stated the following :
'In my opinion the
learned Judge was not correct in concluding
on the facts
that
the use of the bandwidth and telephone services constituted an
incident of Xsinet's possession of its premises. Xsinet happened
to
use the services at its premises, but this cannot be described as
an incident of possession in the same way as the use
of water or
electricity installations may in certain circumstances be an incident
of occupation of residential premises.'
[22]
What the authorities stress, following
Bon Quelle
, is that
“although it might appear to be illogical that the servitude
does not have to be proved, it is the status
quo
which has to
be restored by the
mandament van spolie
until it is determined
whether the servitude indeed exists.” See
De Beer v
Zimbali Estate Management Association (Pty) Ltd & another
2007 (3) SA 254
(N) para 44. In
Tigon Ltd v Bestyet
Investments (Pty) Ltd
2001 (4) SA 634
(N) the court confirmed
that a mandament could be instituted where a shareholder’s name
had been unilaterally removed from
the register, following the
cancellation of a contract resulting in the expungement of certain
shares. Here too it was argued that
the right sought to be restored
was incorporeal and non-servitutal. Relying on
Bon Quelle
for
the principle that the mandament is a possessory remedy to restore
the
status
quo ante
, irrespective of the rights of the
parties, the court held that incorporeal rights are capable of being
possessed.
[23]
The point emphasised by the applicant’s counsel is that the
applicant is not seeking to
enforce any contractual term of an
agreement with the first respondent, nor is he seeking relief from
the court in relation to
his disputed status as a director in
relation to the second and third respondents. He simply comes
to court to restore his
email access, which he enjoyed prior to its
termination on the instruction from the second and third respondent’s
attorney.
The opposition is based on the construct that
quasi-possession cannot be extended to the grant of computer and
email access which
is intrinsically linked to the directorship of
Blendrite, which was cancelled when the applicant ceased to be a
director.
The respondents relied on
Microsure (Pty) Ltd &
others v Net 1 Applied Technologies South Africa Ltd
2010 (2) SA
59
(N) where Koen J noted that:
‘
[33]
A number of well-meaning jurists appear to have encouraged the
extension of the application of the mandament van spolie to
instances
of quasi-possession of incorporeals. That is undesirable and could
possibly even be detrimental to economic and commercial
activity. No
argument requiring such an extension of the common law was advanced.
It must also not be forgotten that a denial of
the mandament van
spolie would not leave the applicants remediless. They have other
remedies, in contract and possibly also delict.’
[24]
This case can be distinguished from
Microsure
in that the
contract for the provision of the internet access lies between the
first respondent and Blendrite. The applicant,
in light of the
second and third respondents’ contention that he is no longer a
director, is unable to assert any contractual
right against the first
respondent. He is left without remedy other than a mandament
against the respondents. Koen J associated
himself with the decision
of
De Beer v Zimbali Estate
holding
that even where rights are protected, there must be an element of
possession, and not merely possession of the card or entry
disc which
would only facilitate access, whether it be to an estate (as in the
De Beer
case)
or to a computer server, as in
casu
.
The applicant was not on the periphery of the activities of
Blendrite. He is, according to the CIPC forms, a director
of
Blendrite. To that extent, his position can be distinguished
from the applicant in
De Beer
.
[25]
More recently the SCA in
Eskom Holdings SOC Limited v Masinda
(1225/2018)
[2019] ZASCA 98
(18 June 2019) considered whether the
respondent, Ms Masinda, was entitled to a spoliation order in
circumstances where the electricity
supply to her property was
disconnected by Eskom on the grounds that she was identified as
having an illegal connection.
The court affirmed the principle
that spoliation provides a remedy in such situations by requiring the
“status quo preceding
the dispossession to be restored …
as a preliminary to any enquiry or investigation into the merits of
the dispute' as to
which of the parties is entitled to possession”.
Accordingly, the court hearing the spoliation application does not
require
proof of a claimant's existing right to the property.
Proof of possession is what is required. To this extent, it affirms
the ratio in
Bon Quelle
. The SCA concluded that to direct
Eskom to restore the electricity connections that were removed would
be to compel it to commit
an illegality and for that reason held that
the appeal must succeed. The point of departure from previous
cases appears to
be that the SCA focused on the lawfulness of the
possession. This however does not affect the right of the
applicant, in
my view, to approach the court for a mandamus, as the
lawfulness of his access to the email and internet, are not disputed.
[26]
The applicant’s counsel submitted that support for his
contention that the mandament is available to quasi-possession
of
incorporeal rights, like those of internet access and email, is to be
found at para [14] of
Eskom v Masinda
where the court endorsed
the views expressed in
Firstrand v Scholtz
. Counsel for
the respondents sought to rely on para [22] of the court’s
judgment where it made reference
to Zulu v Minister of Works,
affirming that “spoliation should be refused where the
right to receive it is purely personal in nature. The mere
existence
of such a supply is, in itself, insufficient to establish a
right constituting an incident of possession of the property to which
it is delivered.” The right of the applicant in this
matter to receive emails and access the internet and to view,
as
stated on affidavit, costings and formulations of products, are not
merely ‘personal’ rights. They flow and
are, in my
view, an incident of possession of him being a director at Blendrite.
[27]
It is also pertinent to point out that the notice to cancel the
applicant’s email appears not to coincide
with the date when
the second and third respondents allege his directorship came to an
end. However, even after the directorship
allegedly came to an
end, the applicant remained at the company and enjoyed undisturbed
access to his email facilities. For
all of the above reasons, I
am of the view that the applicant has succeeded in making out a case
for the relief sought.
[28]
It was further submitted by the second and third respondents that
this application was not urgent, relying on
Mangala v Mangala
1967 (2) SA 415
(E) at 416D-F where the court held that the applicant
has:
‘
not
complied with the provisions of Rule 6 (12)
(b)
in the manner
which would entitle him to cut across the whole procedure governing
applications to Court. It is true that a spoliation
order is a remedy
which in the nature of things should be a speedy one, but the fact
that there has to be restitution before all
else simply means that,
once an applicant has proved that he was in peaceful possession and
his possession was disturbed, the respondent
must restore that
position before entering into the merits of the ownership or
otherwise of the subject matter. It does not follow
that, because an
application is one for a spoliation order, the matter automatically
becomes one of urgency. The applicant must
either comply with the
Rules in the normal way or make out a case for urgency in accordance
with the provision of Rule 6 (12)
(b).’
[29]
The respondents took issue with the urgency of the application
contending that the application papers were issued
on 16 July 2019
but only served on the second and third respondent on 18 July 2019, a
day before the hearing on 19 July 2019.
When the matter came
before Moodley J she did not strike the matter off the roll for lack
of urgency. Instead, she recorded
the respondents’
contention that urgency was in dispute and adjourned the matter,
enabling the second and third respondents
to file a further set of
affidavits. The respondents have not been prejudiced in any
way. They have had ample opportunity
to place all necessary
facts before the court. The applicant’s attorney wrote to
the first respondent on 11 July 2019
and gave the respondents an
opportunity to uplift the cause of complaint and restore the
applicant’s internet access.
The second and third
respondent took no steps to instruct the first respondent, who is
merely a service provider, to comply with
the request. The applicant
moved with due promptitude to seek relief, which the authorities have
held, is by its nature a speedy
remedy intended to provide only
temporary relief and to prevent people taking the law into their own
hands. Silberberg and
Schoeman,
The Law of Property
,
Ch.13.2.1.2. I am of the view that the objections to urgency are
without substance.
[30]
Counsel for the respondents submitted that there were numerous
disputes of fact on the papers
and that the application should either
be dismissed or referred to oral evidence. Neither of these
aspects was either canvassed
on the papers or in the respondent’s
pithy heads. The only dispute that emerges is whether the applicant
retired as a director
of Blendrite. As stated above, it is not
necessary for me to make any finding in regard thereto for the
purpose of this application.
In any event, I am satisfied
that there is no reason why the matter should be referred to oral
evidence, less still, for
the application to be dismissed. I am
satisfied that the applicant has made a case out for the relief
sought. The applicant’s
counsel submitted that the court
has had the benefit of having all of the information placed before it
(including a substantial
amount of unnecessary information, having no
bearing on the issues). On that basis, it was submitted that a
final order should
be granted as it would simply entail unnecessary
escalation of costs for a rule to be issued. Predictably, the
respondents
were opposed to the suggestion that a final order could
be granted, with Mr
Manikam
suggesting that on the return day
“any or all other interested parties” may wish to oppose
a final order being granted.
The question that immediately
comes to mind is who else other than the respondents, who have been
cited, would have an interest
in this matter? Counsel was
unable to say who such “interested persons” could be.
I suspect that there
are none. In any event, the second and
third respondents have opposed the application without success.
The first respondent
abides the decision of this court.
Insofar
as the parties have now filed their affidavits on the merits of the
spoliation application and fully addressed me thereon,
I find no need
to consider issuing a rule.
[31]
Lastly, I turn to the issue of costs. The applicant has been
successful and there is no
reason why costs should not follow the
result. The applicant sought costs on an attorney-client scale
against the respondents.
Only the second and third respondents
have opposed the application. No costs ought to be granted
against the first respondent,
who was acting on the instructions of
its client, Blendrite and at the instance presumably of the third
respondent, the ‘remaining’
director of the company. In
light of the second and third respondents disregard for the Practice
Direction of this Division, and
the manner in which they introduced
irrelevant information having nothing to do with the issue before the
court, I am persuaded
that this is indeed a case where I should make
an award of costs on a punitive scale.
[32]
I make the following order:
1. The
first respondent be and is hereby directed to
ante omnia
restore the applicant’s access to the email company
network/server respect of the second respondent forthwith.
2. The
second and third respondents are to pay the costs of the application
on an attorney-client scale, jointly
and severally, the one paying
the other to be absolved.
_______________
M R
Chetty
Appearances
For the
Applicant:
SK Dayal SC
Instructed
by:
Maharaj Attorneys
Address:
3 Rydalll Vale Crescent
La
Lucia Ridge
Ref:
P Chetty/M1099.19
Tel:
031 566 2100
Email:
prinashree@maharajattorneys.co.za
For the
Respondents: M
Manikam
Instructed
by:
Jay Reddy Attorney
Address:
21 Larch Road
Morningside
Tel:
031 202 4151
Ref:
jr/p475
Email:
reddyattorneys@telkomsa.net
Date
Reserved:
5 September 2019
Date
Delivered:
4 October 2019