Can a licensed electronic communications services provider install fibre-optic cable over land without the owner’s consent, or is the owner entitled to refuse, or to impose conditions? These were the questions before the Supreme Court of Appeal (SCA) in Dark Fibre Africa (Pty) Ltd v City of Cape Town  ZASCA 168 (30 November 2018).
In this case Dark Fibre Africa asked the court to rule that the City of Cape Town was not entitled to impose conditions for the laying of fibre-optic cables along public roads owned by the City. The Cape High Court had ruled in favour of the City, and the matter came before the SCA on appeal. The dispute turned on the interpretation of section 22 of the Electronic Communications Act 36 of 2005 (“ECA”), which provides as follows:
(a) enter upon any land, including any street, road, footpath or land reserved for public purposes, any railway and any waterway of the Republic;
(b) construct and maintain an electronic communications network or electronic communications facilities upon, under, over, along or across any land, including any street, road, footpath or land reserved for public purposes, any railway and any waterway of the Republic; and
(c) alter or remove its electronic communications network or electronic communications facilities, and may for that purpose attach wires, stays or any other kind of support to any building or other structure.
(2) In taking any action in terms of subsection (1), due regard must be had to applicable law and the environmental policy of the Republic.
Dark Fibre Africa argued that in terms of section 22(1) it did not need the consent of the City and was not obliged to pay levies imposed by the City. (It is interesting to note that Dark Fibre had been paying such levies to the City for some ten years before deciding that it was not legally obliged to do so.)
The SCA relied on the judgment of the Constitutional Court in City of Tshwane Metropolitan Municipality v Link Africa, where the court [held that section 22 of the ECA creates a public servitude over the land in question, subject to the common law rights of the owner. The court decided that “the servitude created by section 22 allowed the holder of the right [in this case the licensee, Dark Fibre Africa] to gain access to the property in so far as it was necessary for the exercise of the servitude].
However, the holder of the servitude (in this case the licensee, Dark Fibre Africa) is constrained by its common law obligations to the landowner. This means the licensee must exercise its rights under section 22 reasonably; and may have to compensate the owner for any loss or damage; and that the landowner may determine how the construction of the fibre-optic networks should be carried out. The SCA held accordingly that Dark Fibre Africa is obliged to pay the levies imposed on it by the owner of the roads (the City).
Section 22 of the ECA therefore creates a servitude over all land, including any street, road, footpath or land reserved for public purposes, and an electronic communications network service licensee may enter upon the land and construct and maintain an electronic communications network or electronic communications facilities. However, the relationship between the servitude holder and the landowner is governed by common law principles on servitudes, including the right of the landowner to impose reasonable conditions and the duty of the servitude holder to act reasonably in exercising its rights and to compensate the owner for loss or damage.