Telkom SA Ltd v Xsinet (Pty) Ltd
Jurisdiction | South Africa |
Judge | Vivier ADP, Olivier JA, Conradie JA, Jones AJA and Shongwe AJA |
Judgment Date | 31 March 2003 |
Citation | 2003 (5) SA 309 (SCA) |
Docket Number | 92/2002 |
Hearing Date | 06 March 2003 |
Counsel | O 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. |
Court | Supreme 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...
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Property Law
...v Telkom SA Ltd 2002 (3) SA 629 (C).111 Xsinet (Pty) Ltd v Telkom SA Ltd 2002 (3) SA 629 (C) 639.112 Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA).113 Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA) para 12.114 Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA) para 14.1......
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...Development (Justice Alliance of South Africa as amici curiae). 2013 (12) BCLR 1429 (CC) ..... 46Telkom Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA) ........................ 228Terblanche v Minister of Safety and Security [2009] 2 All SA 211 (C) 269Thint (Pty) Ltd v NDPP; Zuma v NDPP 2008 (......
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...CG van de r Mer we “Th ing s” in LAWS A 27 (2014) para 93; Muller et al Law of Prop erty 326-3277 Telkom SA Ltd v X sinet (Pty) Ltd 2003 5 SA 309 (SCA) para 98 Telkom SA Ltd v X sinet (Pty) Ltd 2003 5 SA 309 (SCA) para 9 See also Van der Mer we “Thi ngs” in LAWSA 2 7 para 70; Boggenpoel Pro......
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...v Telkom SA Ltd 2002 (3) SA 629 (C).111 Xsinet (Pty) Ltd v Telkom SA Ltd 2002 (3) SA 629 (C) 639.112 Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA).113 Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA) para 12.114 Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA) para 14.1......
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2015 index
...Development (Justice Alliance of South Africa as amici curiae). 2013 (12) BCLR 1429 (CC) ..... 46Telkom Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA) ........................ 228Terblanche v Minister of Safety and Security [2009] 2 All SA 211 (C) 269Thint (Pty) Ltd v NDPP; Zuma v NDPP 2008 (......
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Protecting Quasi-Possession of Electricity Supply with the Mandament van Spolie – Has the Supreme Court of Appeal Switched Off this Possibility? [A Discussion of Eskom Holdings Soc Ltd v Masinda 2019 5 SA 386 (SCA)]
...CG van de r Mer we “Th ing s” in LAWS A 27 (2014) para 93; Muller et al Law of Prop erty 326-3277 Telkom SA Ltd v X sinet (Pty) Ltd 2003 5 SA 309 (SCA) para 98 Telkom SA Ltd v X sinet (Pty) Ltd 2003 5 SA 309 (SCA) para 9 See also Van der Mer we “Thi ngs” in LAWSA 2 7 para 70; Boggenpoel Pro......
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Protecting Quasi-Possession of Electricity Supply with the Mandament van Spolie – Has the Supreme Court of Appeal Switched Off this Possibility? [A Discussion of Eskom Holdings Soc Ltd v Masinda 2019 5 SA 386 (SCA)]
...CG van de r Mer we “Th ing s” in LAWS A 27 (2014) para 93; Muller et al Law of Prop erty 326-3277 Telkom SA Ltd v X sinet (Pty) Ltd 2003 5 SA 309 (SCA) para 98 Telkom SA Ltd v X sinet (Pty) Ltd 2003 5 SA 309 (SCA) para 9 See also Van der Mer we “Thi ngs” in LAWSA 2 7 para 70; Boggenpoel Pro......