In City of Tshwane Metropolitan Municipality v. Link Africa (Pty) Ltd and Others (CCT 184/14) [2015] ZACC 29, the Constitutional Court confirmed the constitutionality of a provision in the Electronic Communications Act 36 of 2005 (ECA) that allows licensees to enter into and construct electronic communications networks on another person’s land without the landowner’s consent. 

This judgment is of particular importance as it found that the ECA effectively creates a public servitude over land in favour of licensees.

Background

Link Africa (Pty) Limited (Link Africa) was issued with a licence under the ECA to develop a fibre optic cabling network. 

Section 22 of the ECA entitles Link Africa, as a licence holder, to construct electronic communication infrastructure on the land of another person, provided that due regard is had to applicable laws and the State’s environmental policy.  Link Africa wished to exercise these rights by installing its fibre optic cabling network on the property of the City of Tshwane Metropolitan Municipality (City).

The City asked for an order (i) declaring that the landowner’s consent is required under section 22 of the ECA prior to constructing electronic communication infrastructure on that person’s land and (ii) interdicting Link Africa from installing a fibre optic cabling network on the City’s property without the consent of or an agreement with the City. In the alternative, the City made an application that, if it is held that section 22 of the ECA does not require the landowner’s consent, section 22 be declared unconstitutional as it constitutes the arbitrary deprivation of property.

Judgment of the Constitutional Court

The court found that (i) section 22 of the ECA does not require landowners’ consent and (ii) there is no other law that requires the landowner’s consent in the present circumstances.

In examining the constitutionality of section 22 of the ECA, the court considered whether the deprivation of land brought about by section 22 is actually arbitrary.

First, the court found that the requirement in section 22 of the ECA for licensees to give due regard to applicable laws protects landowners from having their land expropriated without compensation or a fair procedure as the provisions of the Expropriation Act 63 of 1975 would kick in.

Secondly, the court found that section 22 of the ECA effectively creates a public servitude. The court emphasised that property ownership under the common law does not afford the owner an absolute bar to entry without consent and that property as an individual right is subject to social imperatives. The rights of an owner have always been limited, under the common law, to servitudes over the property.

The court held that the common law provides flexible and equitable principles that protect landowners whose properties are subjected to public servitudes and that such principles are available to landowners in the circumstances contemplated in section 22 of the ECA.

The rights over the property of another under a servitude must be exercised civiliter modo. This means that the rights must be exercised respectfully and with due caution.

As the rights conferred by section 22 of the ECA must be exercised in compliance with the common law principles related to servitudes, this ultimately means that:

• licensees may select the premises and access to them for the purposes of constructing, maintaining, altering or removing their electronic communication network or facilities in taking action under section 22;
• this selection must be done in a civil and reasonable manner (which includes giving reasonable notice to the landowner of where they intend to locate their works and determining the proposed access to the property in consultation with the landowner);
• compensation in proportion to the advantage gained by the network licensee and the disadvantages suffered by the landowner is payable by the licensee to the landowner in respect of the exercise of the public servitude granted under section 22 of the ECA; and
• where disputes arise about the manner of exercising rights under section 22 of the ECA or the extent of the compensation payable, these must be determined by way of dispute resolution or adjudication.

Due to the safeguard provided under the common law in relation to servitudes, the court found that the deprivation of property under section 22 is not procedurally or substantively arbitrary. In addition to these common law safeguards, the court also emphasised that the ECA aims to meaningfully and practically improve South Africa’s broadband capacity and that section 22 of the ECA serves a legitimate and important legislative purpose. This is further evidence that the deprivation of property under section 22 of the ECA is not arbitrary.