The Supreme Court of Appeal recently ruled in favour of Dark Fibre Africa (DFA) in a case involving the fibre broadband rollout in the Msunduzi Municipality, also known as Pietermaritzburg. The importance of this ruling for broadband in South Africa is considerable. To grasp why this case is so essential, it is needed to look back at what took place over the last two years. In 2012 DFA submitted wayleave applications to the Msunduzi Municipality to roll out a fibre network in Pietermaritzburg.
The applications for fibre broadband rollout were never approved. DFA CEO Gustav Smit explained that they tried to work with the municipality, but “after months and months” they had no choice but to start construction. In November 2013, DFA started construction of its fibre network in Pietermaritzburg with no wayleave approvals. This was attainable because of the rights given to DFA in section 22 of the ECA (Electronic Communications Act) as an electronic communications network licensee: An electronic communications network service licensee could – (a) enter upon any land, such as any street, road, footpath or land reserved for public purposes, any railway and any waterway of the Republic. (b) construct & sustain an electronic communications network or electronic communications facilities upon, under, over, along or across any land, including any street, road, footpath or land reserved for public purposes, any railway & any waterway of the Republic. “We will persist with everything else, although if they do not need to sign off a wayleave we were going to use the rights afforded to us to create our networks,” mentioned Smit. The Msunduzi Municipality was not happy, and confiscated DFA & DFA’s contractor’s equipment used for the fibre network rollout.
The court papers included an August 2013 circular which stated that “all wayleaves issued since the very first January 2013 are null and void & must be terminated with immediate effect”. Based on the judgement it was “obvious that such enables … would in all likelihood not have been granted”. With this favourable ruling DFA was allowed to continue trenching, however this was not the end of the story. The Msunduzi Municipality appealed the ruling in the Supreme Court of Appeal. The SCA held that licensees below the Electronic Communications Act do not demand permission from a neighborhood authority to exercise their rights under section 22 of the ECA.
The court further said that the Msunduzi Municipality had “repeatedly refused to cooperate with DFA for approval of the plan of construction, which includes agreement on conditions on which construction would proceed”. By winning the two legal battles, DFA paved the way for fibre network operators to be in a position to roll out networks without having to manage feasible difficulties at a municipal level.
The Msunduzi Municipality agreed that “the roll-out of fibre-optic networks by any service provider in a properly controlled manner is useful to the City”. “In doing so, but, such service providers must have suitable regard to the interest of all land owners, other service providers, plus the citizens involved”.