The South African telecommunications landscape has recently been shaped by two pivotal legal battles between the incumbent operator, Telkom SA SOC Ltd, and open-access fiber providers Octotel (Pty) Ltd and Metro Fibre Networx (Pty) Ltd (MFN).

These cases clarify the application of Section 43 of the Electronic Communications Act (ECA) regarding the leasing of underground infrastructure in residential estates. 

The Octotel Matter: A Victory for Open Access

In January 2026, the High Court delivered a landmark ruling in Octotel (Pty) Ltd v ICASA and Others. Telkom had alleged that Octotel contravened Section 43 by installing fiber in ducts at three Western Cape estates without first entering into a leasing agreement with Telkom.

The Court set aside ICASA’s decision against Octotel, establishing several critical legal principles:

• The Seeker’s Obligation: The Court held that Section 43 imposes a mandatory obligation on the facility provider to lease upon request, but it does not create a free-standing statutory duty for a facility seeker to request a lease before using existing space.
• Common-Law Accession: The judgment reaffirmed that underground ducts and manholes generally accede to the land and are owned by the Homeowners’ Association (HOA), not the operator who initially supervised the installation.
• Right to Control Access: The Court rejected Telkom’s claim that its historical role in “establishing” the network gave it a perpetual right to veto access by competitors, especially when the developers and HOAs bore the construction and maintenance costs.

The MFN Matter: Complexity and Pending Appeal

The dispute involving Metro Fibre Networx followed a different trajectory. In September 2024, the High Court (Gauteng Division) dismissed MFN’s application to review an ICASA ruling that favoured Telkom regarding infrastructure in Pretoria-based estates.

• Entitlement vs. Ownership: While the High Court agreed that the HOA owned the ducts via accession, it found that Telkom’s Section 22 servitudinal rights gave it a sufficient “entitlement” to require MFN to negotiate a lease under Section 43.

Impact on the Industry

These judgments are vital for Homeowners’ Associations and fiber operators alike. They highlight a growing judicial shift toward:

1. Promoting Competition: Preventing incumbents from “hugging” infrastructure to stifle rivals.
2. HOA Empowerment: Confirming that the physical infrastructure (ducts) often belongs to the estate, allowing HOAs to authorize multiple operators.
3. Clarifying Section 43: Distinguishing between the right to request a lease and the obligation of the incumbent to provide one.

Note: The MFN matter remains under appeal as of late 2025, and the final SCA ruling will likely provide the definitive word on how Section 43 interacts with common-law property rights and Section 22 servitudes.

Octotel Judgement

MFN Judgement

[14 November 2022]

South Africa’s communications regulator, ICASA, has issued rulings in conflicts concerning facility leasing. These disputes involve Telkom, who accused other fiber optic network operators of utilizing Telkom’s infrastructure to create their own networks, without a leasing agreement in place.

Telkom vs Octotel

Telkom vs Metro Fibre Networx

[22 August 2020]

The High Court issued a strong ruling that promotes competition in the telecom industry by requiring companies to share electronic communication infrastructure.

Telkom v ICASA & others 28332_18

Vodacom asked Telkom to share space in their underground tunnels (ducts) so they could bring faster fiber internet to customers. Telkom disagreed and made things difficult by bringing up a bunch of legal reasons to slow everything down.

Eventually, a government agency (ICASA) looked into the situation and said Vodacom could use the ducts. Telkom wasn’t happy and tried to challenge this decision in court, but the judge firmly sided with Vodacom.

There’s a law that says companies like Telkom have to share their facilities with others if it’s technically possible and makes business sense. Vodacom argued their request to use the ducts followed this law, but Telkom disagreed.

This court case is a big deal because it explains this law clearly, which hasn’t been done well before. Even though Telkom might try to fight it again, this decision is a win for Vodacom and shows that the government agency was right to try and fix the situation.

Even though the 2010 Regulations haven’t been officially updated, the Electronic Communications Amendment Act of 2014 still made some changes. Here’s what the Amendment Act does:

• It changes the wording used when considering if a facilities leasing request makes financial sense. Instead of “financial feasibility,” the Act now uses “economic feasibility.”
• It makes sure that facilities leasing agreements treat everyone fairly. Essentially, a company can’t offer better deals to itself or its affiliates than it offers to others who want to lease its facilities.
• It adds a new rule for leasing essential facilities. This rule says that such requests are automatically considered good for competition in the electronic communications industry. The company that owns the facilities has to respond to a lease request within 20 business days, either by agreeing on fair terms or explaining why the lease isn’t possible. If no agreement is reached, a government agency (ICASA) can step in and set the terms.
• It gets rid of certain agreements that limit access to facilities. Specifically, it cancels any agreements that prevent other companies from using international communications lines after a one-year grace period. ICASA can also create exceptions for smaller companies (those with less than 25% market share).
• It clarifies what’s considered an “electronic communications facility.” This now includes things like wiring in apartment buildings, buildings that house telecommunications equipment, facilities that allow different companies to use their infrastructure, and data centers.

Electronic Communications Facilities Leasing Regulations, 2010