THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 227/2020

In the matter between:

BLENDRITE (PTY) LTD
FIRST APPELLANT
MANIVASAN PALANI
SECOND APPELLANT

and

DHRAMALINGUM MOONISAMI                    FIRST RESPONDENT
GLOBAL NEWORK SYSTEMS (PTY)LTD       SECOND RESPONDENT

Neutral citation:  Blendrite (Pty) Ltd and Another v Moonisami and
Another (Case no 227/2020) [2021] ZASCA 77 (10 June 2021)
Coram:
NAVSA, MOCUMIE and DLODLO JJA and LEDWABA and
GORVEN AJJA

Heard:
25 May 2021

Delivered: This judgment was handed down electronically by circulation to
the parties' representatives by email, publication on the Supreme Court of
Appeal website and release to SAFLII. The date and time for hand-down is
deemed to be 10h00 on 10 June 2021.

Summary:  Property Law – spoliation – access to server and use of email
address of director terminated – neither servitutal use nor use as an incident
of possession of corporeal property – not quasi-possession for which
mandament van spolie available.

ORDER
On appeal from: KwaZulu-Natal Division of the High Court, Durban
(Chetty J, sitting as court of first instance):
The appeal is upheld with costs, including the costs of two counsel
where so employed.
The order of the High Court is set aside and substituted with an order
dismissing the application with costs, including the costs of two counsel,
where so employed.

JUDGMENT

Gorven AJA (Navsa, Mocumie and Dlodlo JJA and Ledwaba AJA
concurring):
[1] The first appellant (Blendrite) has two listed directors, the first
respondent (Mr Moonisami) and the second appellant (Dr Palani). Disputes
have arisen between them. These prompted Mr Moonisami to launch an
application (the liquidation application) to liquidate the appellant (Blendrite).
The basis of the liquidation application is that, due to the deadlock between
the two listed directors, it is just and equitable that Blendrite be wound up by
the court. The liquidation application is opposed and not yet finalised. The
second respondent (Global) is a web hosting entity which hosts the server and
email addresses of Blendrite.

[2] It is common ground that Mr Moonisami and Dr Palani jointly funded
the formation of Blendrite in 2008. The former functioned as the managing
director and the latter as the financial director until the disputes arose. Dr
Palani claims that Mr Moonisami has resigned as a director of Blendrite. This,
too, is contested and remains unresolved. At a factual level, Dr Palani is in
control of Blendrite. By letter dated 11 July 2019, an attorney purporting to
represent Blendrite wrote to one Greg Lock, the managing director of Global.
The letter stated that Mr Moonisami had resigned as a director of Blendrite
and instructed Global to terminate the ‘email and company network/server
access’ of Mr Moonisami with immediate effect. Global did so on
17 July 2019.

[3] As a result, Mr Moonisami approached the KwaZulu-Natal Division of
the High Court, Durban by way of an urgent application. The relief sought by
Mr Moonisami was spoliatory in nature, seeking a rule nisi with interim relief
as follows:
‘That [Global] be and is hereby directed to ante omnia restore [Mr Moonisami’s] access to
the email and company network/server in respect of Blendrite [. . .] forthwith.’
The case made out by Mr Moonisami was that he was in peaceful and
undisturbed possession of his access to Blendrite’s internet server and his
email address kc@blendrite.co.za and that he had been denied this access by
Global.

[4] Only Blendrite and Dr Palani opposed the application. After various
adjournments it was heard as an opposed motion for final relief by Chetty J.
He granted the relief mentioned above as well as a punitive costs order against
those opposing. An application by Blendrite and Dr Palani for leave to appeal

was dismissed with costs. The present appeal is with the leave of this court.
As with the application in the high court, Global takes no part in the appeal.

[5] The mandament van spolie remedy relates to possession. Possession is:
‘[M]ost commonly defined as the combination of a factual situation and of a mental state
consisting in the factual control or detention of a thing (corpus) coupled with the will to
possess the thing (animus possidendi).’1
In Nino Bonino v De Lange,2 Innes CJ explained the nature of spoliation:
‘[S]poliation is any illicit deprivation of another of the right of possession which he has,
whether in regard to movable or immovable property or even in regard to a legal right.’
The remedy is a possessory suit based on the maxim spoliatus ante omnia
restituendus est. In simple terms, this means that possession must be restored
to the dispossessed person before enquiring into anything else.

[6] The mandament van spolie is designed to be a robust, speedy remedy
which serves to prevent recourse to self-help.3  The sole requirements are that
the dispossessed person had ‘possession of a kind which warrants the
protection accorded by the remedy, and that he was unlawfully ousted’.4 All
that must be proved is the fact of prior possession and that the possessor was
deprived of that possession unlawfully. Unlawfully here means without
agreement or recourse to law.

[7] The mandament provides for the immediate restoration of possession
regardless of, and before determining, the rights of the parties to the thing

1 27 Lawsa 2 ed para 70.
2 Nino Bonino v De Lange 1906 TS 120 at 122.
3 Painter v Strauss 1951 (3) SA 307 (O) at 31-H4A – B.
4 Yeko v Qana 1973 (4) SA 735 (A) at 739G.

possessed. As indicated, it is the fact of possession which is material not the
basis of possession. As Innes CJ held:
‘It is a fundamental principle that no man is allowed to take the law into his own hands; no
one is permitted to dispossess another forcibly or wrongfully and against his consent of the
possession of property, whether movable or immovable. If he does so the Court will
summarily restore the status quo ante and will do that as a preliminary to any inquiry or
investigation into the merits of the dispute.’5
The prior lawfulness or otherwise of the possession is of no moment. This was
trenchantly stated by Van Blerk JA in Yeko v Qana:6
‘[T]he injustice of the possession of the person despoiled is irrelevant as he is entitled to a
spoliation order even if he is a thief or a robber. The fundamental principle of the remedy
is that no one is allowed to take the law into his own hands’.
Likewise, and importantly, the respective legal rights of the parties to possess
the property in question do not enter into consideration.7

[8] As mentioned, what is protected must be ‘possession of a kind which
warrants the protection accorded by the remedy’. It is on this issue that the
present appeal turns.

[9] In general, the factual possession of movable and immovable property
does not give rise to conceptual difficulties. There the physical thing (corpus)

5 Nino Bonino at 122.
6 Yeko v Qana at 739F-G.
7 Mankowitz v Loewenthal 1982 (3) SA 758 (A) at 763A. See also Ngqukumba v Minister of Safety and
Security and Others 2014 (5) SA 112 (CC). Section 68(6)(b) of the National Road Traffic Act prohibited
lawful possession of motor vehicles whose engine or chassis number had been falsified, destroyed, or
tampered with. The Constitutional Court held at para 21 that the mandament van spolie entailed restoration
of possession of the vehicle in question before all else and directed that possession be restored. The question
of whether the erstwhile possessor had lawful cause to possess was a matter to be dealt with after restoration
of possession under the mandament had taken place.

is possessed. But the law also recognises that the remedy lies where
incorporeal property is spoliated:
‘However, the law also recognises so-called quasi-possession or juridical possession
(possessio iuris) which consists in the exercise of control over an incorporeal coupled
with animus to exercise such control.’8

[10] The mandament was recognised early in Roman-Dutch law to apply to
the exercise of actions usually flowing from servitudes.9 This, and other
incorporeals relating to possession of property, are protected even if exclusive
use or occupation is not alleged. In the case of servitudes, for example, the
owner of the servient tenement has use of the property subject to the servitude.
The approach to the factual purported use of a servitude has been taken up
into our law. Some debate ensued in South African law as to what needs to be
proved in such a case. Is it necessary to prove the servitude or only that use
normally arising from a servitude has been exercised?

[11] In Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi,10 this court dealt
with the termination by the appellant of a flow of water to the respondent. The
respondent municipality had for decades pumped water from a particular
farm. It had done so claiming to hold a servitude entitling it to such use. The
appellant acquired the farm on which the fountain was located and, after some
time, prevented the municipality from using the water. The municipality was
granted a spoliation order requiring the status quo ante to be restored. On
appeal, the appellant, which had disputed the servitude, argued that the

8 27 Lawsa 2 ed para 70.
9 J Voet Commentarius ad Pandectas 43 16 7.
10 Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi [1988] ZASCA 123; 1989 (1) SA 508 (A); [1989] 1 All
SA 416 (A).

municipality was obliged to prove that it held a servitude in order to be entitled
to spoliatory relief.
[12] Obviously, the specific water which the municipality was prevented
from obtaining had never been possessed by it. The purported exercise of a
servitude to obtain the water was thus incorporeal property. Hefer JA
disagreed that possession of only corporeal property is protected by the
mandament.11 He went on to hold that, in that matter, it was unnecessary to
prove the servitude, concluding:
‘Prior to the interference, the respondent, under the impression that he was doing so on the
basis of a servitude, exercised the powers of a servitude holder. That is the status quo which
must be restored until it is determined if the servitude indeed exists.’12
This accords with the principle that no rights need be proved. This was
elegantly summarised by Du Plessis:
‘[T]he actual use or the exercise of powers which would normally flow from the named
rights are exercised by the spoliated person. In those circumstances, it is then not
considered whether the spoliated person obtained those rights, only whether they actually
used or exercised the powers associated with that right.’13

[13] Although Innes CJ, and many following cases, spoke of the ‘right of
possession’ and ‘a legal right’, what is in issue is the deprivation of actions
associated with a servitude rather than the underlying basis or right of that
person to the servitude. This kind of possession of an incorporeal is known as

11 J C Sonnekus and J L Neels Sakereg Vonnisbundel 2 ed (2008) at 54. See also Bon Quelle at 514I-515B.
12 Bon Quelle at 516G-H. My translation. The original reads:
‘Voor die versteuring het die respondent, onder die indruk dat hy dit uit hoofde van 'n serwituut doen, die
bevoegdhede van 'n serwituuthouer uitgeoefen. Dit is die status quo wat herstel moet word totdat dit vasgestel
word of die serwituut inderdaad bestaan.’
13 P Du Plessis ‘Bulletin van die Fakulteit Regte PU vir CHO’ (1976) 27 30-31. Referenced in A J Van der
Walt (1984) 47 THRHR 429 at 430. My translation. The original reads:
‘[D]ie daadwerklike gebruik of die uitoefening van bevoegdhede wat normaalweg uit die genoemde regte
voortspruit, deur die gespolieerde uitgeoefen is. Daar word dan in sodanige gevalle nie gekyk of die betrokke
reg aan die gespolieerde toegekom het nie, maar of die gespolieerde wel daadwerklik die bevoegdhede wat
uit sodanige reg sou voortspruit, gebruik of uitgeoefen het.’

quasi-possession. Since there is no physical thing possessed, there is little
wonder that our courts have struggled to articulate the basis on which quasi-
possession is protected. In order to avoid the confusion that any right need be
proved, I prefer to avoid the use of language concerning rights where possible.

[14] So, in this line of cases, the purported use of a servitude constitutes
quasi-possession of an incorporeal, irrespective of whether the user, or quasi-
possessor, proves a legal right to the servitude.14 Prior users who have been
deprived of the use of a servitude have been spoliated and the mandament van
spolie lies.

[15] Our courts have also recognised the use of certain supplies of services
to property which are incidental to the possession of immovable property as
being incorporeal property capable of quasi-possession and worthy of
protection. However, a distinction is drawn between these and personal rights
which do not arise as an incident of possession of corporeal property. In ATM
Solutions (Pty) Ltd v Olkru Handelaars CC and Another,15 Lewis JA
explained:
‘The cases where quasi-possession has been protected by a spoliation order have almost
invariably dealt with rights to use property (for example, servitudes or the purported
exercise of servitudes – ‘gebruiksregte’) or an incident of the possession or control of the
property. The law in this regard was recently succinctly stated in FirstRand Ltd v Scholtz
where Malan AJA pointed out that a spoliation order –
“does not have a catch-all function to protect the quasi-possessio of all kinds of rights
irrespective of their nature. In cases . . . where a purported servitude is concerned the

14 Nienaber v Stuckey 1946 AD 1049 at 1056; Bon Quelle (Edms) Bpk v Munisipaliteit van
Otavi 1989 (1) SA 508 (A).
15 ATM Solutions (Pty) Ltd v Olkru Handelaars CC and Another [2008] ZASCA 153; 2009 (4) SA 337
(SCA); [2009] 2 All SA 1 (SCA) para 9.

mandament is obviously the appropriate remedy but not where contractual rights are in
dispute or specific performance of contractual obligations is claimed . . . It follows that the
nature of the professed right, even if it need not be proved, must be determined or the right
characterized to establish whether its quasi possessio is deserving of protection by the
mandament.”
[. . .] Thus only rights to use property, or incidents of occupation, will warrant a spoliation
order.’16

[16] Cases involving the supply of water and electricity have occasioned
some uneven judgments. These sometimes refer to the deprivation of a ‘right’
to receive a supply of water or electricity. More accurately, however, it is the
deprivation of a prior supply of water or electricity. The crucial issue is that
this is protected in limited circumstances, where it has been received as an
incident of occupation of the property. The limitation was made clear in
Eskom Holdings Soc Ltd v Masinda,17 where Leach JA considered what can
be protected by the mandament, saying:
‘However, the cases that I have dealt with above graphically illustrate how, in the context
of a disconnection of the supply of such a service, 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. In order to justify a spoliation order the right must be of such a
nature that it vests in the person in possession of the property as an incident of their
possession. Rights bestowed by servitude, registration or statute are obvious examples of
this. On the other hand, rights that flow from a contractual nexus between the parties are
insufficient as they are purely personal, and a spoliation order, in effect, would amount to
an order of specific performance in proceedings in which a respondent is precluded from
disproving the merits of the applicant's claim for possession. Consequently, insofar as

16 The reference, omitted from the quote, is to FirstRand Ltd t/a Rand Merchant Bank and Another v Scholtz
NO and Others 2008 (2) SA 503 (SCA); [2007] 1 All SA 436.
17 Eskom Holdings Soc Ltd v Masinda [2019] ZASCA 98; 2019 (5) SA 386 (SCA) para 22.

previous cases may be construed as holding that such a supply is in itself an incident of the
possession of property to which it is delivered, they must be regarded as having been
wrongly decided.’
This sets out the approach to be taken. The incorporeal of a prior supply of
the service which qualifies is one which is an incident of the possession or
control of corporeal property.

[17] Since the present matter does not relate to interruption in the supply of
water or electricity, or to something which is alleged to be an incident of
possession of movable or immovable property, it is not necessary to deal with
that line of cases in any further detail.

[18] In ATM Solutions, the appellant had installed an automated teller
machine (ATM) at a convenience store run by the first respondent. The first
respondent had the ATM disconnected, removed, and placed in a storeroom.
It was then replaced with another entity’s ATM. The appellant applied for a
spoliation order but both the court of first instance and this Court refused it on
the basis that this amounted to seeking specific performance of a contract. The
placing of the ATM of the appellant was not an incident of possession or
control of property. The appellant did not occupy the property. Any right to
have the ATM present and connected at the premises was a personal right
arising from contract.

[19] The crisp issue in both the court of first instance and on appeal in the
present matter is thus whether the prior access to an email address and
company network and/or server amounted to quasi-possession of an
incorporeal which qualified for protection by a spoliation order. The case most

closely resembling the present one is this Court’s decision in Telkom SA v
Xsinet (Pty) Ltd.18 In that matter, the appellant disconnected the respondent’s
telephone and bandwidth systems when a dispute arose as to whether the
respondent owed money for a service. This Court held that the receipt of the
telecommunications service arose from a personal right in contract. The use
of the bandwidth and telephone service was not an incident of possession of
the premises from which the respondent operated. The appeal against the
spoliation order succeeded and the order was set aside.

[20] In the present matter, the prior use of the email address and server was
not an incident of possession of movable or immovable property on the part
of the respondent. This was not even alleged. 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. I
can see no basis for distinguishing the present matter from that of Telkom, by
which we are bound unless we are of the view that it is clearly wrong and
requires to be set right. For the reasons aforesaid that decision is consonant
with prior jurisprudence and correct. 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 appeal must succeed and the order of the
court of first instance, based on spoliatory relief, set aside.

18 Telkom SA v Xsinet (Pty) Ltd [2003] ZASCA 35; 2003 (5) SA 309 (SCA).

[21] In the result:
The appeal is upheld with costs, including the costs of two counsel
where so employed.
The order of the High Court is set aside and substituted with an order
dismissing the application with costs, including the costs of two counsel,
where so employed.

________________________
GORVEN AJA
ACTING JUDGE OF APPEAL

Appearances

For appellants:
N Singh SC (with him M Manikam)
Instructed by:
Jay Reddy Attorney, Durban

Phatshoane Henney, Bloemfontein

For respondent:
PD Quinlan

Instructed by:
Maharaj Attorneys, Durban

Clause Reid Attorneys, Bloemfontein.
SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF THE JUDGMENT DELIVERED
MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COAPPEAL
FROM:

The Registrar, Supreme Court of Appeal

DATE:

10 June 2021

STATUS:

Immediate

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal.

Blendrite (Pty) Ltd and Another v Moonisami and Another (Case no 227/2020)
[2021] ZASCA 77 (10 June 2021)

Today the Supreme Court of Appeal upheld an appeal from the KwaZulu-Natal
Division of the High Court, Durban (per Chetty J). Mr Moonisami brought a spoliation
application against Blendrite (Pty) Ltd and two others. He is one of two listed
directors of Blendrite. The other party against whom the application was brought was
Global Network Solutions (Pty) Ltd. Global hosts the server and email addresses of
Blendrite. It took no part in the application or the appeal. Mr Moonisami and the other
listed director fell out. The latter, having assumed control of Blendrite, claims that Mr
Moonisami resigned as a director. This is hotly denied. Blendrite then instructed
Global to terminate Mr Moonisami’s use of the network and his email address. It is
this act which Mr Moonisami says amounts to spoliation of a non-corporeal in his
possession. The court a quo held that this was the case and granted a spoliation

order. It also granted Blendrite leave to appeal.

The Supreme Court of Appeal traced the origins of spoliatory relief. The mandament
van spolie requires only the factual proof of prior possession and the unlawful
deprivation of possession, in other words without agreement or recourse to law. It is
aimed at preventing self-help. The respective rights of the parties to possession are
not evaluated until possession has been restored. With corporeal things, both
movable and immovable, possession is relatively straightforward to prove. But our
law also recognises that quasi-possession of certain incorporeals is also protected
by the remedy. Here, too, the legal right to possess the incorporeal is of no moment.
It is the factual quasi-possession prior to deprivation which must be proved. As such,
talk of ‘rights’ of possession are best avoided.

The classic case where the remedy applies to incorporeals relates to servitudes.
Quasi-possession is shown by the factual use of the servitude. The right to do so is
of no moment until restoration takes place. More recently quasi-possession of the
supply of services to immovable properties such as water or electricity has been
protected, but in limited circumstances only. A distinction is drawn between services
supplied as an incident of possession of corporeal property and those supplied by
virtue of a personal right such as contract. It is only the former to which the
mandament van spolie applies. As such, any quasi-possession must be shown to
have arisen as an incident of possession of the immovable property occupied by the
quasi-possessor.

Mr Moonisami, in his capacity as director, had access to Blendrite’s server and an
email address hosted by Global at the instance of Blendrite. His use of these did not
arise as an incident of possession of corporeal property on his part. As such the
Supreme Court of Appeal held that this was not protected by the mandament van
spolie. Since the High Court erred in finding that it was protected, the appeal was
upheld with costs of two counsel where so employed and the order on the spoliation
application set aside and substituted by one dismissing the application with costs of
two counsel where so employed.