Electronic communications network operators have been given the green light to install networks on infrastructure belonging to municipalities.
The majority of six judges of the Constitutional Court found on Wednesday that two sections of the Electronic Communications Act were constitutionally valid in an appeal brought by the City of Tshwane.
The two sections are section 22‚ which allows a company which has been granted a license to construct an electronic communications network or an electronic communications facility on the land of another person‚ and section 24.
Section 24 provides that a licensee may‚ after giving 30 days notice to the local authority‚ construct the network. It also provides that a licensee must pay all reasonable expenses incurred by a local authority in connection with any alterations or supervision of the work.
Link Africa‚ a company which builds and operates fibre-optic networks‚ wanted to develop a fibre-optic electronic communications network within the jurisdiction of the City of Tshwane municipality in 2011. It sought to install its network in the city’s existing sewer and storm water infrastructure and service ducts.
The city manager refused to endorse Link Africa’s plans.
The dispute was whether Link Africa needed to obtain consent from the municipality before it could go ahead.
Last year‚ the municipality sought an interdict restraining Link Africa from installing its network. It also asked the high court in Pretoria to declare that Link Africa required the municipality’s consent before installing its network. It believed that section 22 permitted arbitrary deprivation of property and this made it unconstitutional.
The court dismissed the municipality’s application‚ saying that section 22 does not authorise arbitrary deprivation of property. It held that the fibre-optic cables installed by Link Africa would benefit business and the residents of the city.
The City of Tshwane approached the Constitutional Court and in a majority judgment written by Justices Edwin Cameron and Johan Froneman‚ the court found that the act does not permit the arbitrary deprivation of property.
“The challenged statutory provisions are modelled on statutes that go back to 1911. For over a century‚ provisions of this kind have conferred necessary powers on agents installing communications and other networks for the public good‚” they said.
They said in 1911‚ the need to transmit telegraphs was compelling to move toward an interconnected society.
Now‚ it was mobile phones and the internet.
“But this is not achieved by disregarding property rights. As we explain‚ in undertaking the means necessary to provide modern communication infrastructure‚ ample procedural and substantive safeguards provide protection to property rights‚” Cameron and Froneman said.
They also said the evidence of the minister of communications showed that the rollout of broadband telecommunications was good for economic growth‚ education and public service delivery.
“South Africa lags behind comparable countries.”
In a minority judgment‚ Justice Chris Jafta and acting Justice Zukisa Tshiqi said the landowner’s property rights were rendered subservient to the licensee’s.
They also said section 22 placed the rights it created for the licensee above the constitutional rights of the landowner without a procedurally fair process.
“This is not in line with our Constitution which does not rank any of the rights it guarantees above other rights‚” Jafta and Tshiqi said.