Telkom SA Ltd v Xsinet (Pty) Ltd

JurisdictionSouth Africa
JudgeVivier ADP, Olivier JA, Conradie JA, Jones AJA and Shongwe AJA
Judgment Date31 March 2003
Citation2003 (5) SA 309 (SCA)
Docket Number92/2002
Hearing Date06 March 2003
CounselO L Rogers SC (with him I J Muller) for the appellant. L A Rose-Innes SC (with him R D E Gordon) for the respondent.
CourtSupreme Court of Appeal

Jones AJA:

[1] This is an appeal, with leave from the Court a quo, against a spoliation order granted by Hodes AJ in the Cape of G Good Hope Provincial Division. Hodes AJ's judgment is reported as Xsinet (Pty) Ltd v Telkom SA Ltd 2002 (3) SA 629 (C), in which the facts are fully set out.

[2] The respondent, Xsinet (Pty) Ltd (Xsinet), carries on business as an internet service provider at premises at De Ville H Centre, 1 Wellington Road, Durbanville. In order to conduct its business it required telecommunication services from the appellant, Telkom SA Ltd (Telkom), which has an exclusive licence to provide these services in terms of the Telecommunications Act 103 of 1996.

[3] To enable Xsinet to operate, Telkom supplied, installed and maintained a telephone system and a bandwidth system at Xsinet's I premises. The telephone system comprised a primary line which ran into a PABX system with 25 telephone extensions and 38 individual telephone lines. The telephone lines were connected to telephones at Xsinet's premises for use by Xsinet's employees and were used on a daily basis in Xsinet's business until Telkom disconnected them on 6 September 2001. J

Jones AJA

[4] The bandwidth system comprised two telephone lines which ran into Xsinet's premises and were connected to a modem on the premises. A Its purpose was to connect Xsinet and its 'hosted' clients to the Internet. Clients were called 'hosted' clients because Xsinet managed their websites from its premises. By using the bandwidth system these clients were able to gain access to their websites and the Internet, B and they were able to communicate via e-mail. Xsinet had about 400 'hosted' clients, ranging from small to large companies.

[5] Xsinet paid all charges levied by Telkom in terms of these agreements. It claimed a contractual right to use the systems. It alleged that it used them at its premises without interference from Telkom or anybody else, and that it was in peaceful and undisturbed C possession thereof until the systems were disconnected.

[6] The disconnection came about in the following way. Telkom also provided a third service to Xsinet, which is called a connectivity service. There is an unresolved dispute between Telkom and Xsinet about payment of charges in respect of the connectivity service. The dispute D resulted in Xsinet instituting application proceedings against Telkom. Shortly before the hearing Xsinet withdrew its application and terminated the connectivity contract in circumstances which gave rise to yet another dispute. On 5 September 2002 Telkom advised Xsinet that unless its alleged indebtedness arising out of the connectivity E service was paid the bandwidth system would be disconnected. That system was indeed disconnected later that day. On the following day the telephone lines were disconnected after a similar notification. Telkom purported to disconnect the systems in terms of the general conditions F under which it provides services, which entitle it to cut off all services if payment is not made in respect of any one service. It would appear that Telkom provided the services by...

To continue reading

Request your trial
49 practice notes
42 cases
  • FirstRand Ltd t/a Rand Merchant Bank and Another v Scholtz NO and Others
    • South Africa
    • Invalid date
    ...Ltd 1994 (1) SA 616 (W):comparedSlabbert v Theodoulou and Another 1952 (2) SA 667 (T): comparedTelkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA): dicta inparas [13] and [14] appliedTigon Ltd v Bestyet Investments (Pty) Ltd 2001 (4) SA 634 (N): consideredVan Wyk v Kleynhans 1969 (1) SA ......
  • Makeshift 1190 (Pty) Ltd v Cilliers
    • South Africa
    • Western Cape Division
    • 25 May 2020
    ...in which no servitude or similar right was alleged, include Masinda itself as well as First Rand v Scholtz, Telkom SA Ltd v Xsinet 2003 (5) SA 309 (SCA) and Zulu v Minister of Works. One may infer, from Leach JA's disapproval of the case, that Eskom v Nikelo should also be placed in this ca......
  • FirstRand Ltd t/a Rand Merchant Bank and Another v Scholtz NO and Others
    • South Africa
    • Supreme Court of Appeal
    • 11 September 2006
    ...Lourens NO and Others [2004] 2 All SA 476 (SCA) at 481a - b (now also reported at 2008 (2) SA 495); Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA) at 314C - D; Zulu v Minister of Works, KwaZulu, and Others 1992 (1) SA 181 (D) at 190F - I; Plaatjie and Another v Olivier NO and Others......
  • Pinzon Traders 8 (Pty) Ltd v Clublink (Pty) Ltd and Another
    • South Africa
    • Eastern Cape Division
    • 29 June 2009
    ...NO v Air Operations of Europe AB and Others 1999 (1) SA 217 (SCA) ([1998] 4 All SA 573): referred to Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA): Case Information Application for a mandament van spolie. The facts appear from the reasons for judgment. G EAS Ford SC (with DH de la ......
  • Request a trial to view additional results
7 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT