Link Africa triumphs in Tshwane court battle - TechCentral

Link Africa triumphs in Tshwane court battle

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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

5 Comments

  1. William Stucke on

    A pity that the Constitutional Court did not find in favour of Link Africa unanimously. Nevertheless, well done Link Africa.
    This is all about making Rapid Deployment a reality, so that we can address the backlog of service provision to our population and meet the Connect SA broadband policy goals.

  2. Why is it a pity? Poorly drafted legislation (in which industry participated), non-existent regulation (when you were on the Council of the Regulator). Instead the courts have used a legal fiction under PAJA to save the industry. Is it any wonder that it was not unanimous? Let us thank heavens that pragmatism won and let us wonder why the City of Tshwane fought so hard to exclude private operators while expanding their own network (which is not available on an open access basis)

  3. William Stucke on

    I agree with you, Mike (which Mike? Go on – show us that bearded face ;-)) that Tshwane had to be stopped and applaud the Constitutional Court decision. However, reading the full decision leads me to not being phased by the minority judgement. It differs, but not markedly from the majority.

    One thing I must take issue with:

    > non-existent regulation (when you were on the Council of the Regulator)

    If you read the original s21 in the ECA, there was no role for ICASA to draft regulations at all. The new version, as of the 2014 amendment of the ECA no longer requires the Minister to draft Guidelines – something that never happened despite the efforts of many. Now, it merely requires the Minister to draft a Policy, and ICASA to subsequently write regulations. As you may know, that draft policy is nearly finalised and will hopefully be published for public comment Real Soon Now ™

    So, after nearly 10 fruitless years, something is at last happening in this area.

  4. William Stucke on

    Ironically, the revised s20 requires ICASA to make regulations within 18 months (ever hopeful!), but this has to happen after the policy is finalised.
    Those 18 months expire next week, and the draft policy hasn’t even been published yet 😉

  5. zenzo dominic ndex on

    I wonder when Africans will mature. Greed Is Involved here If you did deeper but anyways Link Africa deserves the chance to bring growth to Africa. This is not debatable I tell you, we need to move with the times. Let the next generation experience their fate as we already are…hhahahahhahhhahaha

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