Fibre-optic telecommunications specialist Link Africa has won a high-stakes showdown with the City of Tshwane (greater Pretoria) at the constitutional court, allowing it to deploy infrastructure in the city’s water and sewerage systems and setting a precedent that should help other companies roll out telecoms infrastructure more quickly.
In November 2013, Link Africa notified the City of Tshwane of a decision to install fibre in the city’s existing underground infrastructure. The city applied to the high court in Pretoria to prevent the company from using this infrastructure. It also sought a declaration that a provision of the Electronic Communications Act required Link Africa to obtain the city’s consent before the installation of the fibre network and an order directing the company to remove cables already installed.
Alternatively, the city challenged the constitutional validity of certain provisions of the act on the basis that they allow for arbitrary deprivation of property and force municipalities to accept services from licence holders contrary to a procurement provision in the constitution.
The high court found that the act did not authorise arbitrary deprivation of property; instead, the fibre-optic cables installed by Link Africa would benefit the businesses and residents of the city.
The high court did not rule on the challenge based on the procurement provision of the constitution. Both the high court and the supreme court of appeal dismissed the city’s applications for leave to appeal.
Tshwane then took the matter to the constitutional court. A number of companies, including Dark Fibre Africa, MTN and Neotel were joined to the proceedings due to their substantial interest in the application.
The majority judgment of the constitutional court found that the Electronic Communications Act does does not permit the arbitrary deprivation of property.
The court found that the act must be interpreted in accordance with the spirit, purport and object of the bill of rights in a manner that preserves its constitutional validity. The common law, including the common law of servitudes, is sufficiently flexible to allow licence holders to enter any property without the consent of the land owner provided that they exercise these rights respectfully and with due caution, the court said.
However, a minority of the court’s judges found that the impugned provision does not require a licence holder to obtain consent from the property owner before exercising its rights under the act.
The minority view was that the provision is constitutionally invalid because it permitted a licence holder to enter onto another’s property without consent and also allows arbitrary deprivation of property.
The minority disagreed with the majority judgment’s interpretation of the common law. It also stated that the majority did not take the correct approach to adjudicating a constitutional challenge based on a right in the bill of rights. — © 2015 NewsCentral Media
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