Rights of licensees to deploy electronic communications networks

[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.

Telkom SA SOC Ltd vs Residential Estate Dennegeur (Pty) Ltd & Vodacom (Pty) Ltd

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.

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[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 [2015] 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.

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

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.

2017-08-18T15:34:22+00:00 August 16th, 2017|access, legislation, licensing, snippets|