[10 September 2022]
The City of Johannesburg has released a Draft Wayleave Bylaw for public feedback.
Responses are due by the close of business on 26 September 2022 and can be sent to tshepomawa@joburg.gov.za / petermaoko@joburg.org.za.
[6 March 2022]
The High Court in Grahamstown has reiterated the limited rights of electronic communications network service (ECNS) licensees to access public or private land for the deployment of electronic communications infrastructure without landowner consent, as outlined in section 22 of the Electronic Communications Act 36 of 2005. An interim interdict was issued on 22 February 2022, preventing a licensee (Herotel) from deploying network infrastructure without an agreement with the Municipality on how this right would be exercised.
Dr Beyers Naude Local Municipality vs Herotel and others
[31 August 2020]
The Constitutional Court has confirmed that licensees intending to deploy electronic communications facilities on municipal land must adhere to relevant municipal bylaws. Telkom, having faced setbacks in the High Court and the Supreme Court of Appeal in its efforts to justify its mast installations without zoning bylaw compliance, was denied leave to appeal the latter’s decision to the highest court.
Telkom SA SOC Limited v City of Cape Town and Another (CCT287_19) [2020] ZACC 15; 2020 (10) BCLR 1283 (CC) (25 June 2020)
In a unanimous ruling to deny leave to appeal, delivered on 25 June 2020, the Constitutional Court revisited whether the rights conferred by section 22 of the ECA are subject to municipal bylaws and policies, confirming that rights holders must comply with municipal bylaws before exercising their rights.
By affirming the necessity of such compliance, except where bylaws are intended to obstruct section 22’s exercise, the Court has provided a clear rationale regarding the relationship between ECNS licensees and local governments. Local governments possess the legal authority to create and enforce bylaws related to land use, and requiring municipal consent for rezoning applications does not conflict with section 22.
“In line with our legal principles, Telkom’s telecommunications license does not automatically grant it the right to disregard municipal planning and zoning authorities when exercising the rights under section 22(1) of the Act. The Act explicitly states that the exercise of these rights must comply with applicable laws, including the challenged bylaw.” [paragraph 37]
The judgment includes a note regarding the duration taken by municipalities to process applications:
[45] One additional matter deserves mention. This concerns the time taken by the City, and likely other municipalities, to approve applications for constructing cellular masts and related infrastructure. The average processing time ranges from six months to a year. This duration does not align with the needs of licensees and the conditions set by the Regulator. Nonetheless, this is a procedural issue, not directly related to the interpretation of the Constitution. It could be addressed by relevant authorities establishing shorter timeframes for municipalities to process telecommunications-related applications.
Telkom SA SOC Limited v City of Cape Town and Another [2020] ZACC 15
[7 October 2019]
The City of Tshwane has issued a draft micro-trenching policy for public feedback.
CoT Draft Micro-trenching policy V1.3 (2)
Comments should be emailed to deonvi@tshwane.gov.za by no later than 16h00 on 15 October 2019.
This marks the first known instance where a local government has identified micro-trenching as its preferred method for deploying FTTH and multi-dwelling units.
[28 September 2019]
The Supreme Court of Appeal has confirmed that ECNS (Electronic Communications Network Service) licensees must adhere to municipal bylaws when installing networks, even if these bylaws may require obtaining the municipality’s consent.
Telkom SA SOC Ltd v City of Cape Town and Another (1038 2018) [2019] ZASCA 121 (25 September 2019)
[12 June 2019]
Some additional reflections on the Telkom vs. Vodacom & Dennegeur Homeowners’ Association case, presented in what is hopefully an easily understandable format. Note, however, that this matter is still ongoing, with Telkom reportedly having secured an urgent interdict from the Pretoria High Court to prevent Vodacom from utilizing ducting in the estate.
- Telkom had established its copper network using manholes, sleeves, and ducts (“the infrastructure”) belonging to the Dennegeur HOA. When the HOA and Telkom couldn’t agree on upgrading to a fiber network, the HOA made a deal with Vodacom to use the available space in the infrastructure for a fiber network.
- After this agreement, Telkom approached the High Court using a legal remedy called mandament van spolie. This ancient remedy is employed when a party (in this case, Telkom) claims to have been in possession of something (the infrastructure) and alleges that another party (Vodacom) unlawfully took this possession away. It’s typically used in situations like a landlord unlawfully changing the locks on a tenant behind on rent. The Court’s primary concern in such cases is not to determine who is right or wrong in a broader sense but simply to restore possession to the party who (a) had possession and (b) was unlawfully deprived of it.
- The High Court in Cape Town found that Telkom had proven it possessed the infrastructure and that Vodacom, by installing its fiber network, had unlawfully deprived Telkom of this possession. The Court granted the mandament van spolie, ordering Vodacom to remove its fiber network to restore Telkom’s possession to its previous state.
- On appeal, the Supreme Court of Appeal (SCA) concluded that the criteria for granting a mandament van spolie had not been met by Telkom. While Telkom did possess the infrastructure it was actively using—based not on physical possession but on its rights under Section 22 of the Electronic Communications Act of 2005—the SCA found that Telkom had not proven possession of the unused space within the infrastructure.
- Therefore, Vodacom’s use of the unused space did not constitute spoliation, as Telkom’s possession had not been established. Additionally, Vodacom did not interfere with Telkom’s use of the space Telkom was actively using, allowing Telkom to continue operating its copper network. In other words, the deployment of Vodacom’s fiber network did not hinder Telkom’s ability to run its existing copper network.
- It’s also crucial to remember that each case’s outcome will depend on its specific facts. For instance, the SCA emphasized that the manholes could be opened with a generic key, suggesting Telkom wasn’t exercising full physical control of the infrastructure. Today, it’s more common for network providers to use unique keys, restricting access to specific parties, and in such cases, a court might reach a different conclusion.
What does this mean for HOAs and fiber network providers? Is exclusivity for a single fiber network possible?
- A network provider entering into an agreement with an HOA is not relying on rights under Section 22 of the Electronic Communications Act but rather on a contractual right to use or lease passive facilities for its network deployment. Such a lease or usage right can cover all passive facilities. There’s no law or judicial decision prohibiting exclusive fiber network arrangements. In fact, South Africa’s National ICT Policy endorses exclusivity as long as it promotes competition within the network.
- While multiple network provider options might seem appealing, HOAs should recognize that this can impact the financial viability for providers and may discourage investment in fiber networks. Providers often seek guarantees when bearing the upfront costs of network construction and ongoing maintenance. Instead of having multiple providers, the risks of relying on a single network provider can be mitigated by insisting on open-access operations, which offer residents a wide range of ISPs, helping to keep costs competitive. HOAs should also consider including clauses that limit price increases by the provider and allow for benchmarking against comparable developments. Violating these provisions could lead to the loss of exclusivity.
This doesn’t mean a network provider won’t have to share with others. Apart from being an open-access provider, ICASA regulations may require a provider to offer capacity on its network to other providers upon request.
[2 April 2019]
In a decision that will likely be welcomed by the broader industry, the Supreme Court of Appeal (SCA) has overturned the High Court’s position in the matter of Telkom SA SOC Ltd vs. Residential Estate Dennegeur (Pty) Ltd & Vodacom (Pty) Ltd. The SCA ruled, based on the case facts, that Vodacom’s use of the infrastructure to install fiber did not disrupt Telkom’s use of that infrastructure for its copper network.
Dennegeur Estate v Telkom (366_2018) [2019] ZASCA 37 (29 March 2019)
In a related media release (not part of the formal judgement), it was noted that:
The Supreme Court of Appeal determined that Telkom did not possess the infrastructure or cables within Dennegeur, which were owned, occupied, and controlled by the Homeowners Association. Telkom’s rights are derived from Section 22 of the Electronic Communications Act (ECA). The rights under Section 22 of the ECA are servitudinal, meaning they are intangible and not physically possessible. A party claiming a servitudinal right is legally protected against spoliation if it was exercising those rights before the alleged spoliation. Telkom had used its rights by laying copper cables in ducts, sleeves, and manholes. Vodacom’s fiber network did not interfere with Telkom’s use of these ducts or prevent Telkom from operating its network. Thus, the court held that Telkom did not possess the unused space in the ducts, which Vodacom later occupied, meaning Vodacom’s actions did not constitute spoliation. The Supreme Court of Appeal upheld the appeal.
[12 December 2018]
In our post dated 8 April 2018, we provided an analysis of the Western Cape High Court’s judgement in the case of Dark Fibre Africa (DFA) vs. The City of Cape Town. DFA appealed this matter to the Supreme Court of Appeal, which confirmed the High Court’s judgement, ruling in favor of the City.
Dark Fibre Africa v City of Cape Town (195/2018) [2018] ZASCA 168 (30 November 2018)
[21 May 2018]
Ellipsis has prepared a comprehensive summary of the Western Cape High Court’s judgement in the case of Telkom SA SOC Ltd v Kulu NO and Another, delivered on 10 May 2018. This judgement provides further clarity regarding the requirement for licensees to comply with municipal bylaws before exercising their rights under Section 22(1) of the Electronic Communications Act.
Telkom SA SOC Ltd v Kalu NO and Another ZAWCHC 53 (10 May 2018)
The right to deploy networks and the obligation to adhere to applicable law (May 2018)
[8 April 2018]
Ellipsis has prepared a brief note on the judgement of the Western Cape High Court in the case of Dark Fibre Africa vs. The City of Cape Town (14 December 2017) and its implications for the rights of electronic communications network service licensees to access land and install networks without the landowner’s consent.
The right to deploy networks & consideration for applicable law (April 2018)
[16 August 2017]
The judgement from the Western Cape High Court in the case of Telkom vs. Dennegeur Homeowners’ Association & Vodacom—delivered on 26 July 2017—has relevance to the rights of licensees to lease electronic communications facilities and the rights provided under Chapter 4 of the Electronic Communications Act.
Telkom SA SOC Ltd vs. Residential Estate Dennegeur (Pty) Ltd & Vodacom (Pty) Ltd
In summary: Telkom had an existing copper network serving the estate but failed to reach an agreement with the estate to deploy a fiber network. The estate subsequently entered into an agreement with Vodacom, which initially asked Telkom to lease it space in the ducting serving the estate. Telkom refused, leading to a dispute referred to ICASA. Before this could be resolved, Vodacom began deploying its fiber network in the estate’s ducting.
Telkom then approached the courts, claiming it had possession of the electronic communications facilities in the estate and that Vodacom had unlawfully deprived Telkom of this possession by installing its
fiber network.
The High Court ruled in favor of Telkom, ordering that:
- Vodacom must restore Telkom’s possession and the original state of the duct infrastructure at the estate.
- Vodacom must remove all equipment and fiber cables from the infrastructure, restoring it to its previous condition.
- Vodacom and the estate’s Homeowners’ Association must cover Telkom’s legal costs.
[27 September 2015]
The judgement by the South African Constitutional Court in the case of City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and Others [2015] ZACC 29 marks the end of current judicial examination of Chapter 4 of the Electronic Communications Act 36 of 2005. This chapter concerns the rights of electronic communications network service (ECNS) licensees to access private or public land or utilize pipes under streets for network deployment.
City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and Others [2015] ZACC 29
Media Summary: City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and Others
Essentially, the majority judgement from South Africa’s highest court affirmed that neither Section 22 nor Section 24 of the ECA is unconstitutional regarding arbitrary property deprivation. This affirmation was necessary due to arguments suggesting that a licensee did not need the landowner’s or municipal authority’s consent before entering land or using existing infrastructure.
Rights of licensees to deploy electronic communications networks
[10 September 2022]
The City of Johannesburg has released a Draft Wayleave Bylaw for public feedback.
Responses are due by the close of business on 26 September 2022 and can be sent to tshepomawa@joburg.gov.za / petermaoko@joburg.org.za.
[6 March 2022]
The High Court in Grahamstown has reiterated the limited rights of electronic communications network service (ECNS) licensees to access public or private land for the deployment of electronic communications infrastructure without landowner consent, as outlined in section 22 of the Electronic Communications Act 36 of 2005. An interim interdict was issued on 22 February 2022, preventing a licensee (Herotel) from deploying network infrastructure without an agreement with the Municipality on how this right would be exercised.
Dr Beyers Naude Local Municipality vs Herotel and others
[31 August 2020]
The Constitutional Court has confirmed that licensees intending to deploy electronic communications facilities on municipal land must adhere to relevant municipal bylaws. Telkom, having faced setbacks in the High Court and the Supreme Court of Appeal in its efforts to justify its mast installations without zoning bylaw compliance, was denied leave to appeal the latter’s decision to the highest court.
Telkom SA SOC Limited v City of Cape Town and Another (CCT287_19) [2020] ZACC 15; 2020 (10) BCLR 1283 (CC) (25 June 2020)
In a unanimous ruling to deny leave to appeal, delivered on 25 June 2020, the Constitutional Court revisited whether the rights conferred by section 22 of the ECA are subject to municipal bylaws and policies, confirming that rights holders must comply with municipal bylaws before exercising their rights.
By affirming the necessity of such compliance, except where bylaws are intended to obstruct section 22’s exercise, the Court has provided a clear rationale regarding the relationship between ECNS licensees and local governments. Local governments possess the legal authority to create and enforce bylaws related to land use, and requiring municipal consent for rezoning applications does not conflict with section 22.
“In line with our legal principles, Telkom’s telecommunications license does not automatically grant it the right to disregard municipal planning and zoning authorities when exercising the rights under section 22(1) of the Act. The Act explicitly states that the exercise of these rights must comply with applicable laws, including the challenged bylaw.” [paragraph 37]
The judgment includes a note regarding the duration taken by municipalities to process applications:
[45] One additional matter deserves mention. This concerns the time taken by the City, and likely other municipalities, to approve applications for constructing cellular masts and related infrastructure. The average processing time ranges from six months to a year. This duration does not align with the needs of licensees and the conditions set by the Regulator. Nonetheless, this is a procedural issue, not directly related to the interpretation of the Constitution. It could be addressed by relevant authorities establishing shorter timeframes for municipalities to process telecommunications-related applications.
Telkom SA SOC Limited v City of Cape Town and Another [2020] ZACC 15
[7 October 2019]
The City of Tshwane has issued a draft micro-trenching policy for public feedback.
CoT Draft Micro-trenching policy V1.3 (2)
Comments should be emailed to deonvi@tshwane.gov.za by no later than 16h00 on 15 October 2019.
This marks the first known instance where a local government has identified micro-trenching as its preferred method for deploying FTTH and multi-dwelling units.
[28 September 2019]
The Supreme Court of Appeal has confirmed that ECNS (Electronic Communications Network Service) licensees must adhere to municipal bylaws when installing networks, even if these bylaws may require obtaining the municipality’s consent.
Telkom SA SOC Ltd v City of Cape Town and Another (1038 2018) [2019] ZASCA 121 (25 September 2019)
[12 June 2019]
Some additional reflections on the Telkom vs. Vodacom & Dennegeur Homeowners’ Association case, presented in what is hopefully an easily understandable format. Note, however, that this matter is still ongoing, with Telkom reportedly having secured an urgent interdict from the Pretoria High Court to prevent Vodacom from utilizing ducting in the estate.
What does this mean for HOAs and fiber network providers? Is exclusivity for a single fiber network possible?
This doesn’t mean a network provider won’t have to share with others. Apart from being an open-access provider, ICASA regulations may require a provider to offer capacity on its network to other providers upon request.
[2 April 2019]
In a decision that will likely be welcomed by the broader industry, the Supreme Court of Appeal (SCA) has overturned the High Court’s position in the matter of Telkom SA SOC Ltd vs. Residential Estate Dennegeur (Pty) Ltd & Vodacom (Pty) Ltd. The SCA ruled, based on the case facts, that Vodacom’s use of the infrastructure to install fiber did not disrupt Telkom’s use of that infrastructure for its copper network.
Dennegeur Estate v Telkom (366_2018) [2019] ZASCA 37 (29 March 2019)
In a related media release (not part of the formal judgement), it was noted that:
The Supreme Court of Appeal determined that Telkom did not possess the infrastructure or cables within Dennegeur, which were owned, occupied, and controlled by the Homeowners Association. Telkom’s rights are derived from Section 22 of the Electronic Communications Act (ECA). The rights under Section 22 of the ECA are servitudinal, meaning they are intangible and not physically possessible. A party claiming a servitudinal right is legally protected against spoliation if it was exercising those rights before the alleged spoliation. Telkom had used its rights by laying copper cables in ducts, sleeves, and manholes. Vodacom’s fiber network did not interfere with Telkom’s use of these ducts or prevent Telkom from operating its network. Thus, the court held that Telkom did not possess the unused space in the ducts, which Vodacom later occupied, meaning Vodacom’s actions did not constitute spoliation. The Supreme Court of Appeal upheld the appeal.
[12 December 2018]
In our post dated 8 April 2018, we provided an analysis of the Western Cape High Court’s judgement in the case of Dark Fibre Africa (DFA) vs. The City of Cape Town. DFA appealed this matter to the Supreme Court of Appeal, which confirmed the High Court’s judgement, ruling in favor of the City.
Dark Fibre Africa v City of Cape Town (195/2018) [2018] ZASCA 168 (30 November 2018)
[21 May 2018]
Ellipsis has prepared a comprehensive summary of the Western Cape High Court’s judgement in the case of Telkom SA SOC Ltd v Kulu NO and Another, delivered on 10 May 2018. This judgement provides further clarity regarding the requirement for licensees to comply with municipal bylaws before exercising their rights under Section 22(1) of the Electronic Communications Act.
Telkom SA SOC Ltd v Kalu NO and Another ZAWCHC 53 (10 May 2018)
The right to deploy networks and the obligation to adhere to applicable law (May 2018)
[8 April 2018]
Ellipsis has prepared a brief note on the judgement of the Western Cape High Court in the case of Dark Fibre Africa vs. The City of Cape Town (14 December 2017) and its implications for the rights of electronic communications network service licensees to access land and install networks without the landowner’s consent.
The right to deploy networks & consideration for applicable law (April 2018)
[16 August 2017]
The judgement from the Western Cape High Court in the case of Telkom vs. Dennegeur Homeowners’ Association & Vodacom—delivered on 26 July 2017—has relevance to the rights of licensees to lease electronic communications facilities and the rights provided under Chapter 4 of the Electronic Communications Act.
Telkom SA SOC Ltd vs. Residential Estate Dennegeur (Pty) Ltd & Vodacom (Pty) Ltd
In summary: Telkom had an existing copper network serving the estate but failed to reach an agreement with the estate to deploy a fiber network. The estate subsequently entered into an agreement with Vodacom, which initially asked Telkom to lease it space in the ducting serving the estate. Telkom refused, leading to a dispute referred to ICASA. Before this could be resolved, Vodacom began deploying its fiber network in the estate’s ducting.
Telkom then approached the courts, claiming it had possession of the electronic communications facilities in the estate and that Vodacom had unlawfully deprived Telkom of this possession by installing its
fiber network.
The High Court ruled in favor of Telkom, ordering that:
[27 September 2015]
The judgement by the South African Constitutional Court in the case of City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and Others [2015] ZACC 29 marks the end of current judicial examination of Chapter 4 of the Electronic Communications Act 36 of 2005. This chapter concerns the rights of electronic communications network service (ECNS) licensees to access private or public land or utilize pipes under streets for network deployment.
City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and Others [2015] ZACC 29
Media Summary: City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and Others
Essentially, the majority judgement from South Africa’s highest court affirmed that neither Section 22 nor Section 24 of the ECA is unconstitutional regarding arbitrary property deprivation. This affirmation was necessary due to arguments suggesting that a licensee did not need the landowner’s or municipal authority’s consent before entering land or using existing infrastructure.
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