Telkom judgement is groundbreaking – Vodacom

xeslaro

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#81
But Telkom asserted that the space was for it's future fibre roll out plans as per:



It's also interesting to note that conduit is simply plastic within which a cable is placed. Most operators now utilise conduit with multiple inner ducts which are generally not all full - would free air in any of those be treated the same as a single duct conduit?
Telkom sought relief using the MvS remedy. Albeit cheaper, it didn't work. They claimed they were dispossessed of space - fair enough. The SCA held otherwise. I can understand the court's reasoning.

Telkom could again approach the court using the MvS application on the day they wish to install. But Rather, maybe it would be prudent if Telkom approaches the court now for a declaratory order.
 

quovadis

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#82
was for it's future fibre roll out plans as per:
Telkom sought relief using the MvS remedy. Albeit cheaper, it didn't work. They claimed they were dispossessed of space - fair enough. The SCA held otherwise. I can understand the court's reasoning.

Telkom could again approach the court using the MvS application on the day they wish to install. But Rather, maybe it would be prudent if Telkom approaches the court now for a declaratory order.
Interestingly...
https://www.icasa.org.za/uploads/files/Telkom-vs-Vodacom-7September2018-276-2018.pdf

The CCC has no doubt that a construction of section 43(1) which allows a licensee free reign over the duct of another licensee would be absurd and in conflict with the obvious intention of the Legislature – that a lease must be requested. The alternative to a lease cannot be a situation where the (intervening) licensee is permitted to take the law into its own hands: open the duct and make use of the facility without consent by the licensee who created that duct. In fact, section 43 of the ECA protects the right of the licensee who made the duct - albeit on the property of the homeowners by implicitly requiring a lease in all cases where entry is sought.
 

xeslaro

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#83
@quovadis let me test your understanding.

Do you believe that this judgment sets precedent for all of Telkom's conduit piping installed on estates to be made available to other ISPs?
 

xeslaro

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#87
It will be referred to in support of similar arguments. Does that response suffice?
I edited my previous post. I didn't intentionally send that message. I just removed the phone out my pocket now and saw what had happened. Sorry.
 

Swa

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#89
Context matters.

1. Telkom, together with the developer, establish infrastructure for the purposes of Telkom rolling out copper infrastructure. Telkom provide material assistance in the establishment at no cost in the understanding it was for their infrastructure - it couldn't have been used by anyone else at the time.

2. Years go by and legal frameworks change and Fibre becomes popular so HOA decides that they would like to implement it. For whatever reason they select Vodacom as the provider. Vodacom approaches Telkom to lease the infrastructure as per the ECA. Telkom state they are not obliged to lease the infrastructure.

3. Vodacom approaches ICASA for relief based on the ECA and leasing of facilities.

4. Despite the matter being referred to ICASA and before finalisation, Vodacom open up the infrastructure and deploy their infrastructure which is why Telkom apply for and receive relief from the High Court.

5. The SCA reverse this decision which is imo problematic.



Read the act.
No you're viewing it wrong. Who owns the infrastructure or has the right to use it is irrelevant and wasn't ruled on at all. So points 1 and 2 don't count. What was ruled on is whether Vodacom's use of it impairs Telkom's ability to use it because Telkom invoked spoliation. The court found that it isn't the case. This is nothing new or groundbreaking as there's been thousands of spoliation cases before. It's just a weird situation to occur in telecoms but it does not relate to the ECA as Telkom didn't invoke it.

It's a mystery why Telkom used this avenue. It would be the same as me putting up a shack on your erf and you claiming that it removes your ability to use it. The court would rightly find that you can still use your house. The correct avenue would be to sue for trespassing.

I can only speculate why Telkom didn't sought relief based on Vodacom using its infrastructure. Perhaps the contract could shed some light on that. From the sound of it it was a collaboration between them and the estate and the conduit belongs to the HOA. Contracts would take precedence over the ECA. Similarly it's a mystery why Vodacom invoked facilities leasing as that's always been a dead end from the time Neotel tried it.

Yes you're right that Telkom was under the impression that they would be the sole user but that's not a valid argument imo. We're likely talking a 100mm duct here. No way Telkom could ever use it all to provide service for a single estate.
 

quovadis

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#90
No you're viewing it wrong. Who owns the infrastructure or has the right to use it is irrelevant and wasn't ruled on at all. So points 1 and 2 don't count. What was ruled on is whether Vodacom's use of it impairs Telkom's ability to use it because Telkom invoked spoliation. The court found that it isn't the case. This is nothing new or groundbreaking as there's been thousands of spoliation cases before. It's just a weird situation to occur in telecoms but it does not relate to the ECA as Telkom didn't invoke it.

It's a mystery why Telkom used this avenue. It would be the same as me putting up a shack on your erf and you claiming that it removes your ability to use it. The court would rightly find that you can still use your house. The correct avenue would be to sue for trespassing.

I can only speculate why Telkom didn't sought relief based on Vodacom using its infrastructure. Perhaps the contract could shed some light on that. From the sound of it it was a collaboration between them and the estate and the conduit belongs to the HOA. Contracts would take precedence over the ECA. Similarly it's a mystery why Vodacom invoked facilities leasing as that's always been a dead end from the time Neotel tried it.

Yes you're right that Telkom was under the impression that they would be the sole user but that's not a valid argument imo. We're likely talking a 100mm duct here. No way Telkom could ever use it all to provide service for a single estate.
History, facts and context matters in terms of the overall discussion. If you read xeslaro's posts you would better understand why your analogy is problematic. Also, as per the court ruling Telkom approached the High Court for relief even while already having taken the matter up with ICASA but keep spewing your own narrative. No contract can override LAW. The ECA has entire section relating to facilities leasing and ICASA was yet to rule when Vodacom took matters into their own hands. Whether they put in 100mm or 10mm is irrelevant but what is for sure is that any network provider moving forward will take this into consideration when providing specification for build outs.
 
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Swa

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#91
History, facts and context matters in terms of the overall discussion. If you read xeslaro's posts you would better understand why your analogy is problematic. Also, as per the court ruling Telkom approached the High Court for relief even while already having taken the matter up with ICASA but keep spewing your own narrative. No contract can override LAW. The ECA has entire section relating to facilities leasing and ICASA was yet to rule when Vodacom took matters into their own hands. Whether they put in 100mm or 10mm is irrelevant but what is for sure is that any network provider moving forward will take this into consideration when providing specification for build outs.
No sorry you're the one not listening. Who owns the infrastructure is irrelevant as Telkom didn't seek relief in that regard so the court didn't rule on that.

And yes, contracts can override the default law. It's entirely possible that Telkom agreed the ducts are the property of the estate. You're confusing the provisions of the ECA as an inalienable rights which it isn't.

Yeah whether the ducts are 10mm or 100mm is irrelevant as either way Vodacom didn't encroach on its ability to operate its network.
 

quovadis

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#92
No sorry you're the one not listening. Who owns the infrastructure is irrelevant as Telkom didn't seek relief in that regard so the court didn't rule on that.

And yes, contracts can override the default law. It's entirely possible that Telkom agreed the ducts are the property of the estate. You're confusing the provisions of the ECA as an inalienable rights which it isn't.

Yeah whether the ducts are 10mm or 100mm is irrelevant as either way Vodacom didn't encroach on its ability to operate its network.
What I meant is that a contract between the HOA and Vodacom wouldn't override the ECA and Telkom's rights. Agree to disagree on the rest as I believe the additional capacity was due to Telkom's specification in the establishment of the infrastructure in the first place - thus that capacity being claimed by another operator is problematic.
 

Swa

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#93
What I meant is that a contract between the HOA and Vodacom wouldn't override the ECA and Telkom's rights. Agree to disagree on the rest as I believe the additional capacity was due to Telkom's specification in the establishment of the infrastructure in the first place - thus that capacity being claimed by another operator is problematic.
No I'm talking about the contract between the HOA and Telkom.
 

DXL

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#94
The land on which the cables and ducting was laid, does not belong to Telkom. It belongs to the owners of the estate. The owners, together with Vodacom, appealled the judgement and won.
Whilst I agree with you on the Land issue !

Some other questions arise !

Did they the homeowners association pay for the Plastic sleeves and ducts ?
Did the Home owners pay for the trenching ?
So for arguments sake Lets say Telkom foot the Bill for this to have exclusive access to the Estate thereby having the edge for Fibre provision.

Why should Vodacom be allowed to use the services for free. There definitely has to be a cost to vodacom i.e trenching and Cost of Ducts or a lease arrangement.
 

Venomous

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#95
This just opens the door up for "ping pong" blame. When ADSL is not working, Telkom will say Vodacom damaged the cables speak to them etc. etc. In general, to be honest, I would not be too keen on having a competitor use infrastructure that I set up, but i guess it all depends on the merits of the case, of which I admit I don't quite know, so there may be very valid reason. Does vodacom need to pay Telkom for the use?
While I do agree with you there are MANY complexes/estates where the infrastructure was built by the developer, HOA, BC/trustees(sectional title).

Not to far from where I use to live, between 2008-2012, complexes popped up like mushrooms, overnight.

Then when people wanted telkom lines or adsl telkom told them sorry there is no infrastructure to run the cables. Those places then had to get contractors out at their expense to lay whatever infrastructure telkom demanded.

Then some developets got clever and installed all the infrastructure so that all telkom had to do was pull cables and install the wall plug box for the cable to the device in the home. Then the developer charged more for homes in such developments.

In both those cases telkom does not want to share the infrastructure, even claim they own it, but in truth it belongs to the estate/complex not to telkom.


And when fibre started being installed telkom was like "they can't use our stuff"
But it is not theirs. Then fibre providers had to trench and/or use ducting on walls to lay cables.

This is in Joburg, not in SW where the case came from.
 

xeslaro

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#96
I've just read the 2017 High Court Judgment, in favour of Telkom.

It was common cause that Telkom did not own the infrastructure on the estate in which their copper cable ran

Therefore, any future question or argument about who owns the infrastructure in this particular matter is answered. It belongs to the HOA.

The salient issue was the question whether Telkom was in possession of the infrastructure at the time Vodacom installed their cables, and if so, was their possession unlawfully disturbed.

The issue whether Telkom enjoyed an ex lege quasi-possessory right to the infrastructure, seems to me, is the distinction the High Court and SCA [haven't read it yet] had arrived at different findings.
 
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quovadis

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#97
In both those cases telkom does not want to share the infrastructure, even claim they own it, but in truth it belongs to the estate/complex not to telkom.


And when fibre started being installed telkom was like "they can't use our stuff"
But it is not theirs. Then fibre providers had to trench and/or use ducting on walls to lay cables.

This is in Joburg, not in SW where the case came from.
I think there is a fundamental difference between (1) A developer independently establishing infrastructure for the purposes of telecommunications at some stage in the future for whoever wishes to use it and (2) A developer approaching a network provider for the purposes of establishing a telecommunications network and then using their material specification, expertise and oversight to establish the infrastructure which is then built and provisioned for the exclusive use of that network provider.
 

Swa

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#98
Whilst I agree with you on the Land issue !

Some other questions arise !

Did they the homeowners association pay for the Plastic sleeves and ducts ?
Did the Home owners pay for the trenching ?
So for arguments sake Lets say Telkom foot the Bill for this to have exclusive access to the Estate thereby having the edge for Fibre provision.

Why should Vodacom be allowed to use the services for free. There definitely has to be a cost to vodacom i.e trenching and Cost of Ducts or a lease arrangement.
I do agree with you regarding the cost sharing. But it should be a once-off to recoup investment rather than a revenue stream for operators. That doesn't appear to be an issue here though as it's considered common cause the HOA owns the infrastructure. Now if Telkom invoked the ECA to lay their own infrastructure that wouldn't be the case.

We can all debate if it's fair or not on Telkom's part without knowing the facts but it seems that contractually Telkom agreed to whatever to terms were so they can't really complain now if it doesn't work in their favour.
 

jannievanzyl

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#99
@jannievanzyl quick question. Was this SCA appeal and judgment relating only to the spoliation order granted by the court a quo?

Alternately, where the merits, viz property rights, argued in this matter and which form part of the judgment?
Hey, apologies. Only saw this now.

I see the conversation carried on for a few more pages, did you get the details in some of the comments?

I've not looked at this in detail yet, to be honest.
 

xeslaro

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Hey, apologies. Only saw this now.

I see the conversation carried on for a few more pages, did you get the details in some of the comments?

I've not looked at this in detail yet, to be honest.
I read the 2017 high court judgment after my question. I got the answers from it. Thnx.

In hindsight, as I see it and in contrast to what I had earlier stated, Telkom, at the time, had no other legal option but the mandament route.
 
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