Private landowners may not deny telecommunications companies access to their property if fibre infrastructure must be deployed, but are entitled to reasonable compensation if a build results in damage or loss.
This is one of the issues which recently came to the fore after Communications Minister Stella Ndabeni-Abrahams gazetted a proposed policy on the rapid deployment of broadband networks in South Africa.
Among other provisions, the policy aims to expand the existing rights of network operators to access private property to construct network infrastructure – which could include cellphone towers and fibre cables.
This has angered many South Africans, many of whom are concerned that mobile network operators and other telecoms companies will now have the right to lay claim to private land without the necessary permissions or any sort of compensation.
Responding to a question in Parliament from ACDP MP Wayne Maxim Thring, Ndabeni-Abrahams said that the Electronic Communications Act of 2005 already determined that telecoms providers are allowed to enter upon any land to construct electronic communications networks and facilities.
She added that a licensee must, when constructing networks, have due regard to applicable law and the environmental policy of the Republic.
MyBroadband spoke to several major fibre network operators – Link Africa, MetroFibre Networx, and Vumatel – regarding fibre infrastructure rollout as determined by current and planned regulations.
30-day notification period
MetroFibre Networx’s Eugene Slabbert told MyBroadband for private land such as sectional title developments, and all land owned by private companies and individuals, approval is required from the landowner.
This approval may be sought from the relevant authority, which would be the following persons in these cases:
- Sectional title developments – The body corporate is the owner of all common property. MetroFibre usually obtains body corporate permission in the form of a ‘Grant of Rights’ agreement signed by both parties.
- Estate with a Home Owner’s Association (HOA) – Permission to install fibre infrastructure is obtained from the HOA if the roads are on a title that belongs to the HOA.
- Free-standing home – Permission is obtained from the property owner.
Link Africa said that in most cases, the users of the network are situated inside buildings where the service is consumed.
“The fibre needs to be reticulated to a point inside the property where equipment will be placed,” Link Africa said.
The company explained that telecommunications companies followed a 30-day notification period after they requested approval for a build on private land.
According to the operator, the landowner’s failure to respond to this notification grants the company a right to start the construction of the infrastructure.
Telecoms is a basic need
Link Africa said that landowners can respond to the notification with suggestions on how best the deployment can be done, but cannot deny access to land or property to deploy infrastructure.
“The government issues ECNS [Electronic Communications Network Service] licenses to operators and it’s these operators that fulfil on government’s mandate to provide communications services to South Africans,” Link Africa said.
It added that telecommunications is regarded as a basic need similar to water or electricity.
As such, just as property owners cannot expect to make money from water and electricity consumed by their tenants, they are not entitled to revenue on the use of telecoms infrastructure.
“By charging money for access to telecommunications services, their tenants end up paying more for services as telecommunications companies pass any extra costs over to the end-users,” Link Africa added.
Compensation for damage or loss
However, Vumatel told MyBroadband that according to legal interpretation by the firm Cluver Markotter, in the very rare case that fibre installation processes would be required to extend into private property, the relationship between the fibre service provider and the landowner is governed by common law principles on servitudes.
This interpretation was based on a finding made against operator Dark Fibre Africa (DFA) in the Supreme Court of Appeal (SCA) in 2018, when it 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.
DFA argued that in terms of Section 22(1) of the ECA it did not need the consent of the City and was not obliged to pay levies imposed by the City for fibre rollout.
Relying on a previous judgment of the Constitutional Court in City of Tshwane Metropolitan Municipality versus Link Africa, the SCA held that the Act 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 to gain access to the property in so far as it was necessary for the exercise of the servitude,” Cluver Markotter explained.
However, the licensee 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,” Cluver Markotter stated.
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).
MetroFibre Networx told MyBroadband that the requirement to traverse private property, other than to provide the owner with fibre connectivity, is very slim.
The operator noted that homeowners were mainly concerned with the erection of structures like towers, which could be obtrusive or deny access to using certain parts of a property.
In the case of a fibre rollout, it is only the initial build which may temporarily prevent access to land or require temporary damage of the ground from digging or trenching.
Landowners can make recommendations regarding the fibre installation, particularly if they plan to install other infrastructure which may be hindered by the fibre cabling.
“Telecommunications infrastructure owners do what is necessary to resolve bulk infrastructure challenges at their own cost. Fibre infrastructure can be relocated out of bulk infrastructure if required,” Link Africa stated.
MetroFibre Networx said that landowners could be entitled to compensation in instances where builds would prevent the installation of infrastructure like sewerage or piping, but only if such intention is communicated at the time approval for the build is required.