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[2020] ZAGPJHC 186
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Vumacam (Pty) Ltd v Johannesburg Roads Agency and Others (14867/20) [2020] ZAGPJHC 186 (20 August 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
Case
No.: 14867/20
In
the matter between:
Vumacam
(Pty)
Ltd
Applicant
and
Johannesburg
Roads
Agency
First Respondent
City
of Johannesburg Metropolitan
Municipality
Second Respondent
The
Right2Know
Campaign
First Amicus Curiae
Gavin
Dennis
Borrageiro
Second Amicus Curiae
Judgment
Vally
J
Introduction
[1]
A wayleave is the right to use another party's property without
owning or possessing it. The property is to be used in a specified
way only. A common wayleave involves the usage of public roads by
private entities wanting to bury cables or to set up utility
lines.
[2]
In this matter the applicant, Vumacam (Pty) Ltd (Vumacam), over time
sought wayleaves from the first respondent, Johannesburg
Roads Agency
(JRA). JRA granted some of them but not others because it decided to
suspend the process of receiving and determining
wayleave
applications (the suspension decision). Vumacam is prejudiced by the
decision. It approaches this Court seeking the following
orders: (i)
declaring the suspension decision to be unlawful and invalid; (ii)
setting aside the suspension decision; (iii) a direction
that the
receipt of the wayleave applications be entertained, considered and
determined; and, (iv) that all its wayleave applications
that have
been lodged prior to the suspension decision be determined within
seven days of the date of the order.
The
case of Vumacam
[3]
Vumacam is a holder of a class of licence referred to as Electronic
Communications Network Services (ECNS) issued in terms of
the
Electronic Communications Act, 36 of 2005 (the Act). In terms of the
licence, Vumacam is entitled to construct and maintain
an electronic
communications network (ECN). Exercising its rights in terms of the
licence Vumacam set out to construct a network
of closed circuit
television (CCTV) cameras connected to each other and to a data
centre. The CCTV cameras are directed at detecting
and preventing
crime in the areas where they are located. However, they surveil the
movements of all people, the majority of whom
are not engaged in
criminal activities.
[4]
Section 2
of the City of Johannesburg Metropolitan Municipality Public Road and
Miscellaneous By-Laws (bylaws) precludes any person
from placing "a
rope, wire or pole on, under or across any public road" without
first securing the written permission
of the Council.
[1]
To secure the written permission the person has to apply for a
wayleave which the bylaws refer to as "leave to cross the way".
An applicant for a wayleave has to meet certain very specific
requirements, but once these are met the bylaws make clear that the
"wayleave will be issued." They are issued by
JRA.
[5]
In compliance with the bylaws, Vumacam has for some time successfully
applied for wayleaves for purposes of installing CCTV
cameras on
public roads. These were always issued within 48 hours of an
application being made. In April 2019 the applications
were no longer
smoothly processed. JRA began increasing or changing the requirements
on an
ad-hoc
basis. This caused some tension between Vumacam
and JRA, which was resolved in September 2019. Between October 2019
and March 2020,
Vumacam was able to secure 64 wayleaves for CCTV
purposes. However, it still had 29 outstanding applications at this
time. JRA's
wayleave department temporarily closed from 20 March
2020. This was caused by the outbreak of Covid-19 within the country.
On 9
June 2020 JRA issued a letter to various parties, Vumacam being
one of them, informing them that it would be accepting wayleave
applications from 10 June 2020, save for ones concerning aerial and
CCTV installations. These applications would remain "suspended
until further notice." Consequently, Vumacam is precluded from
further rolling out its CCTV network.
[6]
JRA claims that Vumacam wants to install the cameras to surveil the
movements of "innocent people" and sell the "footage"
to third parties. JVR refers to the surveillance as "spy
footage" which is a tradeable asset in the hands of Vumacam.
The
prevention and detection of crime is not the primary reason for the
installation of the cameras, so alleges JRA.
[7]
The essence of JRA's case is that Vumacam is spying on an
individual's movements and thereby infringing their rights to
privacy.
To cope with the problems that arise from such spying
activities a regulatory framework has to be established. The
framework should
focus on ensuring that the material collected
through the cameras is handled in a manner that protects the privacy
of individuals.
To this end it needs to establish policies that will
attend to issues such as:
a. The compliance
requirements that have to be met before wayleaves for "the
installation and operation of surveillance cameras
in residential
areas" can be given;
b. The manner in which
the right to privacy of the public would be protected;
c. The place and manner
in which the footage and related data captured by the cameras would
be stored;
d. The requirements for
disclosure, including to whom it may be disclosed, of the footage and
related data captured by the cameras.
Application
for admission as
amici
and their case
[8]
Two parties, the Right2Know Campaign and a Mr Gavin Borrageiro,
applied to join the proceedings as
amicus
(the
amic1).
Their case is that authorising the installation of a network of
video surveillance CCTV cameras infringes the right to privacy, the
freedom of movement as well as the freedom of association. The
infringement of these fundamental rights impels JRA to afford the
general public an opportunity to comment on the applications of
Vumacam before taking a decision thereto. As no such allowance
is
provided for in the application process, they wish to submit to this
Court that the issue of public participation be given consideration
when determining whether Vumacam is entitled to the relief it seeks,
and further that the Court make it compulsory for JRA to seek
the
opinions of the public before taking a decision on the wayleave
applications. This submission, they say, is not presented to
the
Court by either party in the matter. More importantly, they wish to
be afforded an opportunity to submit that, absent the issue
of public
participation in the authorisation process, and the more fundamental
point that there is no law authorising "bulk
and indiscriminate
CCTV video surveillance", JRA should not issue the wayleaves.
[9]
JRA does not oppose the admission of the
amici.
Vumacam, on
the other hand, refused to consent to the admission of the
amici.
It filed papers challenging the
amicis
request to be
allowed to make submissions on the ground that the
amici
present
no argument distinct from that of JRA. As such, they fail to meet the
threshold requirement to be admitted as
amici.
At the hearing
Vumacam's counsel, Mr Steven Budlender SC, indicated that Vumacam did
not, however, wish to be seen to be obstructive
of the
amici's
involvement and would prefer to leave the matter in the hands of
the Court.
[10]
Having read their papers and having heard argument, it was clear to
me that the
amici
had essentially jettisoned their
contentions regarding the impact on the freedom of movement and the
freedom of association of members
of the public by the monitoring
that takes places through the CCTV cameras. They also jettisoned
their contention that public participation,
in the form of comments
on the wayleave application, should be made compulsory. This placed
the
amici
in a position where they were asking to make
the same point as that of JRA, although they emphasised a slightly
different approach.
They say that in the light of the prevailing
legal
lacunae
it would not be just and equitable to grant
Vumacam the relief it seeks. In the result, I came to the conclusion
that there would
be value in listening to the contentions of the
amici,
and accordingly orally issued an order admitting the
amici.
That order is repeated at the end of this judgment.
Analysis
[11]
Both JRA and the
amici
were insistent that the
application for wayleaves cannot be dislocated from the right to
privacy of the public to use public spaces
without having their
movements monitored. The problem they both face is that a wayleave
application is very narrow in scope, as
is the jurisdiction of JRA.
This is manifest in the relevant bylaws.
[12]
Schedule 2 of the bylaws sets out the basis of a wayleave as
well as the process to be followed by an applicant seeking the
wayleave.
[13]
The
foreword to schedule 2
of the
bylaws indicates that the bylaws are promulgated to ensure that there
is "careful control and co-ordination of all work
in a road
reserve".
[2]
JRA performs
this function. It does so by receiving and approving or disapproving
wayleave applications. While generally a wayleave
is a
right to
use
the
property of
another, in
this
schedule it is
defined as
narrowly as "a formal approval to carry out work in the road
reserve". In terms of sub-item 1.1.1 of schedule
2 an aspirant
applicant must first obtain approval from
"the
relevant
municipal department or
authorised
agent"
before
actually applying for a wayleave. Sub-item 2.1 defines the work to be
carried as that which "includes the digging of
trenches,
tunnelling, erection of signboards, erection of structures, shaping
and landscaping and any other work that may affect
motorists,
cyclists, pedestrians, the road footways, kerbing, traffic signs,
traffic signals, street lighting, underground or overhead
services or
any other structure or service that is contained within the road
reserve."
Sub-item
2.3.6
caters
for
"installation
of
services
by
private
concerns,
e.g.
data
cables to
connect
different buildings." The
rest
of schedule
2
attends
to the procedures that must be followed by the applicant for a
wayleave.
Finally, sub-item 3.1.3 provides that if the application conforms
with the requirement of the schedule "a wayleave
will be issued"
by JRA which then "allows for the work to be carried out."
[14]
In
terms of the bylaws, the only reason JRA could refuse to entertain
the application of Vumacam would be if Vumacam had failed
to secure
the approval of any other municipal department or authorised agent
[3]
if this is necessary, or if its application failed to conform with
the requirements set out in schedule 2. JRA does not dispute
this.
Its case though is that I must read the requirement set out in
sub-item 1.1.1 to mean that Vumacam must first obtain approval
for
the collection and usage of the data obtained from the CCTV cameras.
It does not, nor can it, specify from whom the authorisation
is to be
obtained. There is no requirement in the bylaws which require Vumacam
to first obtain approval for collecting and using
data obtained from
the CCTV cameras it wishes to install. JRA as well as the
amici
were
constrained to identify any law which required Vumacam to obtain
approval before it sought to install the CCTV cameras. The
case is
thus without
merit.
[15]
Recognising this shortcoming, JRA says that until a law
allowing for the regulation of CCTV cameras is put into place it is
entitled
to refuse to entertain Vumacam's applications for the
wayleaves. Stated differently, JRA's case is that the law is
deficient in
this respect, and until the deficiency is remedied it
can suspend the duties imposed upon it by the bylaws. In response to
Vumacam's
request that it makes a determination on the wayleave
applications JRA says that "(g)iven that there is no CCTV legal
framework,
[it] is attempting to protect the City of Johannesburg
when processing and granting wayleave applications", and that
when
a law dealing with this is passed, it "will apply
retrospectively". JRA does not explain why it can confidently
say that
a law - in the form of a regulation or statute - will be
passed and more importantly that such a law "will apply
retrospectively."
There is simply no basis for such a bold
averment from an administrative body whose function in this case is
to oversee the work
that is undertaken at a road reserve and no more.
[16]
JRA
has no power to decide that the law is deficient. Nor does it have
the power to suspend its duties pending the curing of the
alleged
deficiency. In other words, assuming in its favour that the law is
deficient, it still does not have the power to suspend
its duties
pending promulgation of regulations or the enactment of a statute to
deal with issues concerning the collection or usage
of data obtained
from CCTV cameras controlled by private bodies such as Vumacam. It
concedes that there is no law that confers
upon it the power to
suspend its operations pending the promulgation of regulations or the
enactment of a statute to deal with
any breach of any person's right
to privacy.
[4]
It is an
administrative body having no powers outside of those conferred upon
it by the law in general, and in this case by the
bylaws in
particular. It has to carry out its duties, which for the present
purposes ase are restricted to control and coordinate
work that is
done at or in a road reserve. By
refusing to
accept wayleave applications from Vumacam, it is either abdicating
its duties or suspending them. It is therefore not
acting in
accordance with
the law. It
says that it adopted this course of action in order to protect the
privacy rights of persons using
the
roads on
which
the
CCTV
cameras are
placed.
This
may
be
well-meaning,
but
it
is
not
lawful.
Administrative
bodies,
like
JRA,
must
perform
their duties if the principle of legality, which
is
part of the
rule
of law, is
to
have any
meaning.
[5]
Failing to do so in
this case means that it would effectively frustrate Vumacam "by
simply not
taking a
decision
either way.”
[6]
That the
law does
not allow. Accordingly, it has to
consider
the wayleave applications and issue a determination and if need be
furnish supporting reasons.
[17]
Finally, for purposes of closure it bears mentioning that
there is no dispute that Vumacam complies with the legislative
prescripts
set out in the
Protection
of
Personal Information Act
4
of
2013
(POPIA) insofar as protecting an individual's
privacy rights are concerned. This is so, notwithstanding the
amici's
contention that, given the absence of an enabling legal framework
allowing for "bulk and indiscriminate CCTV video surveillance",
it is not just and equitable to, amongst others, compel JRA to
consider the wayleave applications. The
amici
point to the
real harm that can eventuate from the widespread and indiscriminate
digital surveillance that takes place through CCTV
cameras in public
spaces. However, save for emphasising the issue of a just and
equitable remedy, the contention is a repeat of
what JRA presents. It
is nevertheless is misconceived. To compel JRA to do what the law
requires of it - consider and determine
wayleave applications -
can under no circumstances be unjust or inequitable. The lack of a
legal framework, as mentioned above,
is not a matter that falls
within the purview of JRA. Thus, the reference to a just and
equitable remedy is of no assistance. The
collection of personal
information via CCTV cameras at a road reserve (video surveillance)
and the processing thereof, which reveals
who travelled on which road
- whether by vehicle or foot - and when they travelled there may
infringe the privacy and/or another
right(s) of that individual, and
may for that reason be unlawful. However, that issue - the legality
or otherwise of the conduct
- is not engaged here.
[18]
The
amici
drew attention to international instruments
concerning the issues of privacy and security arising from video
surveillance in public
spaces. These are no doubt interesting and
enlightening. My own research on the topic has revealed that courts
are constantly confronted
with complex issues involving the need to
protect the privacy rights of individuals in the light of the growing
prominence of,
inter alia,
the usage of automated facial
recognition technology that accompanies video surveillance. The
courts have anxiously considered a
number of issues arising from the
mass electronic surveillance that occurs through the capturing and
processing of data from the
CCTV cameras that pervade public spaces.
The core issue is whether such activity is compatible with an
individual's right to privacy.
But all of these - the international
instruments as well as the international case law - bear no relevance
to the present case.
[19]
Accordingly, Vumacam has to succeed. The parties agreed that
costs should follow the result. I am of the view that it should be
costs of one counsel only.
Order
[20]
The following order is granted.
1 The Right2Know Campaign
and Mr Gavin Dennis Borrageiro are admitted as, respectively, the
first and second amicus.
2 The first decision to
suspend the consideration of aerial and CCTV wayleave applications is
declared to be unlawful and invalid
and is set aside.
3 The first respondent is
directed to proceed with the consideration and determination of
aerial and CCTV wayleave applications.
4 The first respondent is
directed to, within seven days of the date of this order, issue the
applicant with a decision on the wayleave
applications annexed to the
Notice of Motion, together with reasons if the applications are, or
if any individual one is, refused.
5 The first respondent is
to pay the costs of the application.
______________
Vally
J
Dates
of hearing: 7 August 2020
Date
of judgment: 20 August 2020
For
the Applicant: Steven Budlender SC with Ingrid Cloete
Instructed
by: Schindlers Attorneys
For
the defendant: Kennedy Tsatsawane SC with Naledi Mothapo
Instructed
by: Madhlopa & Thenga Inc
For
both amici: Michael Power with Avani Singh
Instructed
by: Power Singh Inc
[1]
The Council is the "Metropolitan Municipality of the City of
Johannesburg"
[2]
"Road reserve" is defined in the bylaws as "the full
width of a public road and includes the verge and the roadway''
[3]
Sub-item 1.1.1
[4]
Scalabrini Centre, Cape Town and Others v Minister of Home Affairs
and Others
2018 (4) SA 125
(SCA) at [60]
[5]
Compare: Head of Department, Department of Education, Free State
Province v Welkom High School and others
2014 (2) SA 228
(CC) at [1]
[6]
Road Accident Fund v Duma and three similar cases
2013 (6) SA 9
(SCA) at [20]