Telkom SA Ltd v Xsinet (Pty) Ltd (92/2002) [2003] ZASCA 35; 2003 (5) SA 309 (SCA) (31 March 2003)

Telkom SA Ltd v Xsinet (Pty) Ltd (92/2002) [2003] ZASCA 35; 2003 (5) SA 309 (SCA) (31 March 2003)

The Supreme Court of Appeal held that Xsinet's use of the telecommunication systems supplied by Telkom did not constitute possession or quasi-possession for the purposes of the mandament van spolie. The court found that Xsinet's use of the services at its premises was not an incident of possession of the premises in the same way as water or electricity supply might be. The disconnection by Telkom did not amount to unlawful deprivation of possession, but rather involved the termination of a contractual right to services. The remedy of spoliation is not available to enforce such contractual rights, and there is no authority for extending the mandament van spolie to cover personal rights to...

Citation
[2003] ZASCA 35
Parties
Appellant: Telkom SA Limited; Respondent: Xsinet (Proprietary) Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
31 March 2003
Case Number
92/2002
Procedural Posture
Civil Appeal / Appeal From Spoliation Order
Outcome
Appeal allowed; spoliation order set aside; application dismissed with costs.
Judges
Vivier, Olivier, Conradie, Jones, Shongwe
Legal Topics
Mandament Van Spolie, Quasi Possession, Specific Performance, Telecommunications Services
Civil Procedure Commercial and Corporate Mandament Van Spolie Quasi Possession Specific Performance Telecommunications Services

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 9 Party arguments 2
Sign in to unlock

Parties

Telkom SA Limited

Appellant

Xsinet (Proprietary) Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From Spoliation Order

Legal Issues

  1. 1 Whether the disconnection of telecommunication services by Telkom constituted spoliation against Xsinet.
  2. 2 Whether Xsinet had quasi-possession of the telecommunication systems and services supplied by Telkom.
  3. 3 Whether the mandament van spolie remedy is available to enforce contractual rights to telecommunication services.

Ratio Decidendi

The Supreme Court of Appeal held that Xsinet's use of the telecommunication systems supplied by Telkom did not constitute possession or quasi-possession for the purposes of the mandament van spolie. The court found that Xsinet's use of the services at its premises was not an incident of possession of the premises in the same way as water or electricity supply might be. The disconnection by Telkom did not amount to unlawful deprivation of possession, but rather involved the termination of a contractual right to services. The remedy of spoliation is not available to enforce such contractual rights, and there is no authority for extending the mandament van spolie to cover personal rights to...

Court Disposition

Appeal allowed; spoliation order set aside; application dismissed with costs.

Orders

  • The appeal is allowed with costs.
  • The order of the court a quo dated 11 September 2001 is set aside.