MUTSINYA V DANDE HOLDINGS (PVT) LTD & ORS 2008 (2) ZLR 102 (H)

Flynote

Computers and information technology — information stored on computer — such information being illicitly copied without consent of owner of computer — not possible under mandament van spolie to require person copying information to delete it from his computer

Property and real rights — spoliation order — incorporeal property — information stored on computer — such information being illicitly copied without consent of owner of computer — not possible under mandament van spolie to require person copying information to delete it from his computer

Headnote

The respondents unlawfully "cracked" the password on a computer belonging to the applicant, who was employed by the first respondent. They then copied a number of files and information onto their computers. The information that was transferred from the applicant's computer was personal and confidential to the applicant. He sought an order under the mandament van spolie, compelling the respondents to delete from their computers all the information that they had transferred from his computer in the interim, and as final relief, that the respondents be restrained from using the information that they had transferred from the applicant's computer.

Held, that the mandament van spolie is a remedy for the restoration of a possession and is usually used to restore physical possession of movable or immovable property. It is a remedy of a very specific nature. Its sole purpose is to restore the parties to the status quo ante after one of them has been despoiled, against his will or without his consent, of possession of something by the other party's violence, fraud, stealth or other illicit conduct. This is why the rights of the parties to the property do not enter into the picture and no attempt is made, or is indeed permissible, to determine the merits of the underlying dispute between the parties. It is settled law that the remedy now applies to incorporeal rights.

Held, further, that the applicant was in possession of all the information on his computer before the cracking of his password. He had exclusive control over access to that information. The conduct of the respondents in gaining access to his files without his consent and in his absence was illicit. However, by gaining access to his information and transferring such information onto their own computers, the respondents did not deprive the applicant of "possession" of the information in such a manner that such possession could be restored by a spoliation order. The applicant remained in possession of the information that was on his computer. The respondents did not "take away" the information they had accessed. What they did was simply to obtain copies thereof, albeit illicitly. The remedy of mandament van spolie cannot be used to assert and vindicate any other right in the property that is not possession, so the applicant could not use the remedy to interdict the respondents from accessing information that they were not entitled to, but which they now had, or to eradicate from their own computers information that they had illicitly obtained from his. His remedy would lie in some other branch of the law and not in the possessory remedy that he has invoked. What the applicant lost through the actions of the respondents was the right to have exclusive access to and knowledge and use of, the information that was on his computer. Such a right, albeit incorporeal, is incapable of restoration once access has been had to the information. It is a right that is incapable of being possessed physically and it cannot be protected by the mandament van spolie.