In an accompanying media release (not forming part of the judgement itself) it was noted that:
The Supreme Court of Appeal held that Telkom did not enjoy possession of the infrastructure or cables which formed part of Dennegeur and was owned, occupied and controlled by the Home Owners Association. Its rights are derived from the provisions of Section 22 of the Electronic Communications Act (the ECA). The rights conferred by s 22 of the ECA are in their nature servitutal. Sevitutal rights are incorporeal assets and not capable of physical possession. A party professing to be entitled to a servitutal right does, however, enjoy the legal protection against spoliation to the extent that it in fact exercised the professed rights prior to the alleged act of spoliation. Telkom exercised its rights to the extent that it laid down copper cables in the ducts, sleeves and manholes. Vodacom’s optic fibre network did however, not disturb Telkom’s use of the ducts and did not prevent Telkom’s operation of its network. It was accordingly held that Telkom did not possess the vacant space in the ducts and sleeves which was subsequently occupied by Vodacom and that Vodacom’s conduct was therefore not an act of spoliation. The Supreme Court of Appeal accordingly upheld the appeal.
__[12 December 2018] In our post of 8 April 2018 below we provide some analysis of the judgement of the Western Cape High Court in the matter of Dark Fibre Africa (DFA) vs The City of Cape Town. This matter was appealed by DFA to the Supreme Court of Appeal, which confirmed the High Court judgment in ruling in favour of the City.
__[21 May 2018] We have prepared a short note on the judgement of the High Court in the Western Cape in the matter of Telkom SA Soc Ltd v Kulu NO and Another, delivered on 10 May 2018. This judgement brings further clarity to the requirement for licensees to comply with municipal by-laws before exercising their rights under section 22(1) of the Electronic Communications Act.
__[8 April 2018] We have prepared a short note on the judgement of High Court in the Western Cape in the matter of Dark Fibre Africa v the City of Cape Town (14 December 2017) and its implications for the rights of electronic communications network service licensees to enter onto land and deploy networks without the consent of the landowner.
__[16 August 2017] The judgement of the High Court in the Western Cape in the matter of Telkom v Dennegeur Home Owners’ Association & Vodacom – delivered on 26 July 2017 – is relevant to the rights of licensees to lease electronic communications facilities as well as the rights afforded to licensees under Chapter 4 of the Electronic Communications Act.
In short: Telkom had an existing copper communications network servicing the estate, but could not reach agreement with the estate about deploying a fibre network. The estate instead entered into an agreement with Vodacom, which initially requested that Telkom lease it space in the ducting servicing the estate. Telkom refused and a dispute was referred to ICASA. Before this could be finalised, Vodacom began deploying its fibre network in the ducting in the estate.
Telkom approached the courts alleging that it had been in possession of the electronic communications facilities in the estate and that Vodacom had unlawfully deprived Telkom of this possession by deploying its fibre network.
The High Court agreed, and ordered that:
• Vodacom must restore the possession and state of Telkom’s duct infrastructure at the estate.
• Vodacom must remove all equipment and fibre cables from the infrastructure, restoring it to its original state.
• Vodacom and the estate’s Homeowners’ Association are to pay Telkom’s legal costs.
__[27 September 2015] The judgement of the South African Constitutional Court in the matter of City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and Others  ZACC 29 brings to an end the current judicial scrutiny of Chapter 4 of the Electronic Communications Act 36 of 2005 insofar as it relates to the rights of holders of electronic communications network services (ECNS) licences to enter onto private or public land or use pipes under streets for the purpose of deploying their networks.
In essence the majority judgement of the highest court in South Africa has confirmed that neither section 22 nor section 24 of the ECA is unconstitutional in the sense of allowing arbitrary deprivation of property. This confirmation was required due to the arguments raised that a licensee did not require the consent of the landowner or municipal authority before entering onto land or using existing infrastructure.