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CaseLaw
CaseLaw, Attorney
Category: South Africa Law
Satisfied Customers: 1477
Experience:  BCom; LLB; Masters in Law
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We are an IT company and tried to open a case of malicious

Customer Question

We are an IT company and tried to open a case of malicious damage to property but the police refused to open the case stating that software is not property.
Submitted: 1 year ago.
Category: South Africa Law
Customer: replied 1 year ago.
An employee software developer in his resignation period threatended to "destroy his work" he was then caught destroying software on a company PC. The software that he wiped off the machine is valued in excess of R100 000. He was suspended immediately and our labour attorney advised us to open a criminal case of malicious damage to company property but two police stations refused to open the case stating that software is not property. What can we do?
Expert:  CaseLaw replied 1 year ago.

Hi there and thank you for your question,

Ya, I thought that you would have an issue getting the police to prosecute this matter.

As far as the police are concerned, the only property that can be maliciously damaged is corporeal property such as desks, computers, doors, vehicles, etc. Software would fall into incorporeal property and can't be damaged in the same way.

I think that the better route to go is to sue the employee for damages that the company will sustain in fixing the problem. If it will cost you R100k to fix the software, or even R100k to re-develop the software, then that would be your damages.

You would need to hire an attorney to sue the ex-employee. You would need to issue a summons and proceed in the Magistrates Court for your damages. You would then need to prove to the court how the damages are calculated.

If my answer hasn't answered all of your questions, please send me a REPLY with follow up questions so that I can continue to assist you in this same thread for as long as you need. Let me know if you need more advice - don't just rate my answer as "bad".

If my are HAPPY with my answer then please click one of the SMILEY FACES to rate my answer and then click the GREEN ACCEPT button to accept the answer.

Good luck and best regards,

CaseLaw

Please note: This answer does not create an attorney-client relationship. Please consult a local attorney in person for legal advice. This information is being provided so you can better discuss legal matters with your attorney.

Customer: replied 1 year ago.
We do not want to proceed with civil action as a crime has been committed. We need criminal action. So how do we get a criminal case opened?
Expert:  CaseLaw replied 1 year ago.

The only way to do this is to force the police to open a case of malicious damage to property. If you could ask your labour attorney to find previous cases dealing with malicious damage to software, that might assist the police in seeing the light... otherwise you're not going to get very far.

What about speaking to the commercial crimes unit at the SAPS. They may assist.

Also, speak to the station commander about it, and say that at the end of the day the prosecutor needs to make the call. The SAPS just need to open the case.

Expert:  CaseLaw replied 1 year ago.

Hi there again,

I hope that you understood the above advice and that it was useful? Please leave positive feedback for me.

If you have a further question please ask it?

Regards

CaseLaw