In a protracted court battle spanning two years, fibre communications company Link Africa was told today that it can go ahead and install fibre connections through the City of Tshwane’s underground water network.
In 2013 Link Africa notified the City of plans “to install fibre-optic cables in the City’s underground infrastructure including, in particular, in the City’s existing service ducts, sewer and storm-water infrastructure.” Moreover, Link Africa claims it has the right to do this without applying for permission under the terms of the Electronic Communications Act (ECA).
The use of the underground water system is a lot easier, as no trenches need to be dug, and the fibre connections are pretty well protected. Naturally the City took exception to its underground network being used without its consent, and applied to the High Court to stop Link Africa from going ahead.
The High Court, however, sided with Link Africa – and so did the Supreme Court of Appeal. Leaving Tshwane’s only recourse to either give in or take the case to the Constitutional Court.
In the Constitutional Court judgement handed down today, it said that the common law is sufficiently flexible to allow licence holders (Link Africa) to enter upon any property without the consent of the land owner (City of Tshwane) provided that they exercise these rights respectfully and with due caution.
It was found that “the Act must be interpreted in accordance with the spirit, purport and object of the Bill of Rights in a manner that preserves its constitutional validity.”
It also said that “the impugned provision does not require a licence holder to obtain consent from the property owner before exercising its rights under the Electronic Communications Act,” the minority judgement, written by Jafta J and Tshiqi J (with Moseneke DCJ and Nkabinde J concurring), read.
Mobile operators MTN and Neotel, as well as fixed-line operators Telkom and Dark Fibre Africa have asked to be part of the proceedings as they are licensees in terms of the ECA and have an interest in the outcome.
The judgement essentially paves the way for the interested parties to now make use of the underground networks in a city in order to lay down its fibre connections.
In Section 172 of the judgement, it found that the City won’t suffer any damage from Link Africa’s installations.
“In this Court, the City has equally shown no harm. The City’s attack on the statute and the vital broadband expansion it permits is entirely notional, based on the idea of intrusion on municipal powers, without any real-world substance. There is no iota of evidence that installing Link Africa’s electronic communications network damages or impairs City infrastructure. Nor is there any evidence that it could cause harm or prejudice to the City or its people.”
In contrary to the City’s claims, the Constitutional Court confirmed the original High Court ruling, saying that “Link Africa’s network in the City’s sewer system actually provides advantages to the City and people and businesses requiring network access.
Fibre-optic cables are the fastest and most effective product on the market to implement electronic communications networks, and provide a safe and secure system that has practically unlimited bandwidth.”
The City of Tshwane Metropolitan Municipality has also been ordered to pay Link Africa’s legal costs.
[Image – CC by 2.0/x_tine]
