The Supreme Court of Appeal has ruled that Vodacom is allowed to use certain Telkom ducts and sleeves to roll out its fibre network.
The court made the ruling after Telkom and Vodacom fought over the use of Telkom’s ducts in Dennegeur, a residential estate in Somerset West.
When the estate was established in 2000, Telkom rolled out telephone and ADSL lines in it. This included building underground ducts and sleeves for the cabling.
During 2016, however, Vodacom was contacted by the Dennegeur homeowners association to install fibre for residents.
It reportedly asked Telkom for permission to install fibre in its ducts in the estate, but Telkom said it was not obligated to share its infrastructure.
Despite this, Vodacom installed its fibre network using the ducts and sleeves Telkom had built in the estate – and which contained Telkom’s copper cables.
When Telkom discovered Vodacom was running fibre through its conduits, it objected to the move and stated that Vodacom had “committed an act of spoliation” by placing its cables in the ducts and sleeves.
“It therefore claimed the return of its undisturbed possession of the infrastructure in terms of the ‘mandament van spolie'”, said the Supreme Court of Appeal.
To enforce its rights over the conduits in Dennegeur, Telkom took Vodacom to the High Court and demanded that Vodacom remove its fibre from the ducts and sleeves.
Telkom won the High Court case in 2017, and Vodacom was ordered by the Western Cape High Court to remove its fibre cables.
Following the court loss, Vodacom told ICASA that the regulator needs to promote access to duct and pole infrastructure for network operators – and that Vodacom has “been ready to invest in fibre for years”, but has been “restrained by not having reasonable access to those ducts and poles”.
The Dennegeur homeowners association and Vodacom subsequently appealed the High Court’s decision at the Supreme Court of Appeal, after it obtained permission to do so.
After assessing the matter, the Supreme Court stated that Telkom “did not enjoy possession of the infrastructure or cables which formed part of Dennegeur and was owned, occupied, and controlled by the Home Owners Association”.
“Its rights are derived from the provisions of Section 22 of the Electronic Communications Act. The rights conferred are in their nature servitutal,” said the court.
It stated that Telkom exercised its rights to the extent that “it laid down copper cables in the ducts, sleeves, and manholes”.
“Vodacom’s optic fibre network did, however, not disturb Telkom’s use of the ducts and did not prevent Telkom’s operation of its network,” said the court.
Telkom did not possess the vacant space in the ducts and sleeves which was subsequently occupied by Vodacom, and Vodacom’s conduct was “therefore not an act of spoliation”.
Vodacom has called the judgement groundbreaking, while Telkom said it was investigating the matter. Read their full responses here.