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2021
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[2021] ZAGPPHC 280
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Bester Technologies South Africa (Pty) Ltd v City of Tshwane and Others (19380/2021) [2021] ZAGPPHC 280 (4 May 2021)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 19380/2021
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
BESTER
TECHNOLOGIES SOUTH AFRICA (PTY) LTD
Applicant
and
THE
CITY OF TSHWANE
First
Respondent
METROFIBRE
NETWORK (PTY) LTD
Second
Respondent
AFRITEL
(PTY) LTD
Third
Respondent
MINISTER
OF TRANSPORT
Fourth
Respondent
J
U D G M E N T
This
matter has been heard in open court and otherwise disposed of in the
terms of the Directives of the Judge President of this
Division. The
judgment and order are accordingly published and distributed
electronically.
DAVIS,
J
[1]
Introduction
In
June 2020 the City of Tshwane (CoT) granted a wayleave to the second
respondent, Metrofibre Network (Pty) Ltd (Metrofibre) for
conventional trenching in certain urban areas to the west of
Pretoria. On 13 October 2020, the CoT implemented a new “Micro
Trenching for Electronic Communication Network Fibre to Residential
Properties in Tshwane” policy (the Micro Trenching Policy).
On 5 February 2021 the CoT granted the applicant a wayleave for
micro-trenching in the same areas as that of the wayleave granted
to
Metrofibre. The applicant now seeks a revision of the CoT’s
failure to withdraw Metrofibre’s wayleave.
[2]
Trenching operations for the installation of fibre networks in
Tshwane relevant to this application:
2.1
There are two types of trenching used for the installation of fibre
networks.
The first is “conventional” trenching
which comprises of the digging of sizeable trenches which causes huge
disruption
to existing road, pavement and ancillary infrastructure.
The second is “micro-trenching” which, due to its limited
extent, causes for less intervention in existing structures.
2.2
The benefits of micro-trenching and the need for fibre optic
infrastructure
are best summed up in the CoT’s own aforesaid
policy document which, inter alia, records the following:
“
One
of the major challenges that urban municipalities face is the cutting
of the existing roads and pavements to install utility
lines such as
waste water sewers, water mains, electrical cables and conducts.
Once a cut is made, it should be backfilled
with new, appropriate
material, resulting in a patched surface on the pavement. In the
telecommunication industry, the number of
internet users has grown
considerably over the past 20 years. The internet has become an
ubiquitous source of both information
and entertainment, resulting in
a major surge in bandwidth requirements. Since the data
transmission capacity of fibre-optic
cables is higher than that of
the existing copper telecommunications infrastructure, the provision
of fibre optic networks has
become essential to appease users’
growing internet demands … . The Roads and Transport
Department has determined
that for specific applications,
micro-trenching is an innovative deployment technique that is
generally cheaper, less disruptive
and quicker than conventional dig
techniques and less disruptive of traffic and it requires less
extensive restoration work.
Hence the department decided to
authorize micro trenching as an alternative to conventional trenching
in residential streets for
supplying fibre to residential properties
and high-density residential developments
”.
2.3
As already stated in the introduction, at the time that the above
policy was
implemented on 13 October 2020, Metrofibre had been the
holder of a wayleave which authorized it to install fire optic cables
in
the designated areas by way of conventional trenching. It
continued to do so by way of its appointed contractor, the third
respondent, Afritel. This wayleave expires on Saturday 26 June
2021. For this reason, the CoT addressed a letter to
Metrofibre
on 15 October 2020 in the following terms:
“
All
fibre-to-the-home wayleave applications that were not approved on 11
September 2020 must be changed to Micro Trench application.
CoT
Wayleave Service Coordinators will assist with the changes and try to
make it as seamless as possible. Wayleave applications
that
were approved before 11 September 2020 can also be changed to Micro
Trench application and you are strongly urged to consider
it …
”.
2.4
On 5 February 2021 the CoT granted the applicant a wayleave for the
installation
of fibre optic cables by way of micro trenching in
substantially the same areas as the wayleave granted to Metrofibre.
The wayleave
granted to the applicant expires on 28 February 2022.
[3]
The current disputes
3.1
The above factual situation brought about by the CoT resulted in a
position
which has been summed up by counsel appearing for the
applicant in written heads of argument as follows:
“
The
result of the above factual matrix is that as matters stand, there
are two wayleaves for the same area, one held by the second
respondent authorizing it to continue with the outdated conventional
trenching methods in contravention of the Trenching Policing
Framework and another wayleave issued to the applicant, authorizing
it to do micro-trenching which methodology is consistent with
the new
Trenching Policy Framework
”. The summary is correct,
except that the use of the word “contravention” is
perhaps putting it too strong,
“contrary to” might be
more appropriate. Although the policy expresses a preference
for micro trenching, it does
not create a prohibition of conventional
trenching.
3.2
The further consequence of the above and the existing trenching
policy, is the
fact that there must only be one “trencher”
per street. The clash of interests (if not actually a clash of
trenching
teams) was inevitable.
3.3
As a result of the above, the applicant and Metrofibre held a meeting
with the
CoT Wayleave Department on 24 March 2021 in an attempt to
resolve the issue. An impasse was reached. Metrofibre
refused
to relinquish any of its acquired rights or to convert to a
micro-trenching system. The applicant also complained,
supported
by photo evidence, about the damages caused by Metrofibre
(or Afritel). The CoT remained supine and did not resolve
either
of the issues.
3.4
The meeting was following up by a letter form the applicant,
requesting the
CoT to investigate the circumstances leading to the
approval of Metrofibre’s wayleave.
3.5
On the papers before the court, CoT still did nothing. Although
cited
as principal respondent, it neither opposed the relief nor did
it furnish the court with its views of the matter, be it by way of
an
affidavit or appearance in any manner.
3.6
So far the history and current situation.
[4]
The relief sought by the applicant:
4.1
In its notice of motion, apart from issues relating to urgency and
costs, the
applicant claims the following relief:
“
2.
That the first respondent be and is hereby ordered and directed to
review and cancel
the Wayleave for conventional trenching awarded by
it on the 17
th
of June 2020 to the Second
Defendant under Ref No WL 1920 – 0429 …. for being
inconsistent with the First Respondent’s
Trenching Policy dated
the 13
th
October 2020.
3.
That pending the cancellation of Wayleave Ref No WL 1920 – 0429
as prayed
for above, the Second Respondent be and is hereby
interdicted and restrained from continuing with illegal conventional
trenching
…
”.
4.2
From the papers it is clear that the wayleave granted to Metrofibre
was validly
granted. At the time that it was granted, the new
policy was not yet in existence. The allegations of possible
impropriety
expressed in correspondence which preceeded the
application were not pursued in litigation and neither was it relied
on as grounds
for review. The review sought in prayer 2 of the
applicant’s notice of motion against a validly granted wayleave
can
therefore not succeed.
4.3
The applicant’s complaint is rather that, when the Trenching
Policy was
promulgated, it should not only have proclaimed that
micro-trenching would be the preferred method, but that conventional
trenching
would be prohibited and outlawed. This was however
not done. The issue is also not that simple as there may be
circumstances
where micro trenching would not be possible or
appropriate and more conventional methods may be the only option.
There was,
however, no such challenge raised against the policy, not
at the time, nor in the current relief sought.
4.4
Once the intended review envisaged in prayer 2 of the Notice of
Motion falls
away, so does the basis for claiming the interim relief
sought in prayer 3. The interim relief was for an interdict
pending
the review and if the review cannot proceed, then so also can
the interdict not be granted.
4.5
There is a further hurdle in the way of the interim interdict sought
in prayer
3 and that is that there is alternate relief available for
the applicant: the principle is that if one trencher has completed
trenching
works, those works should also be available for use by
other service providers. This much is also expressly conceded
by the
respondents, in particular, the third respondent (in paragraph
30.1 of its answering affidavit).
4.6
As already indicated earlier, the current difficulties did not arise
from the
granting of wayleave for conventional trenching prior to the
new Trenching Policy, but rather from the fact that the CoT permitted
such trenching to continue after the promulgation of the policy.
This problem was exacerbated by only requiring those wayleaves
approved after a certain date (11 September 2020), to convert to
micro trenching rather than requiring all existing wayleave holders
to convert, thereby extending the benefits mentioned earlier across
the board. The last straw was when a second, competing
set of
rights were afforded to the applicant, by granting it wayleave
authority in the same areas as the authority already granted
to
Metrofibre. This non-sensical approach by the CoT has not been
explained by anyone, least of all CoT, but does not lead
to a basis
upon which previous valid acts can be revoked by a court. Only
the party granting the authorities, the CoT, can,
in the context of
the factual matrix pertaining to this case, do so.
4.7
By the same token, the attitude of Metrofibre and Afritel, namely
that they
have a valid wayleave and that this operates to the
exclusion of everyone else, including the applicant, appears to be
not only
opportunistic, but also incorrect. The wayleave itself
does not confer exclusivity. At best, it grants authority to
permit certain works to be done in the road reserves and on CoT
property. It is, in each instance, a right or authority,
not an
exclusive use permit. Depending on the composition of a grid or
network, the wayleave and the one-trencher principle
can operate on a
street-by-street or even block by block basis, or at best, it can
extend to a neighborhood by neighborhood basis,
but Metrofibre cannot
claim exclusively over the whole of its wayleave area to the
exclution of the applicant, particularly in
those streets, areas or
blocks where it is not (yet) operating or wherein it will not operate
within the end of the validity period
of its wayleave in 7 week’s
time.
4.8
Counsel for both Metrofibre and Afritel relied heavily on the maxim
of
qui
prior est
in tempore potior est iure
(which has loosely been translated as “first come, first
served” or that the first right is the stronger right).
There is, however nothing suggested in the wayleaves which makes the
earlier granted wayleave in favour of Metrofibre a stronger
right
that the later wayleave granted to the applicant. They are
simply overlapping wayleave authorizations granted to different
holders employing different trenching methods. The only
exclusion which follows, is the “one trencher per street”
principle and it is in this manner, i.e dependent on the factual
situation, where the “first come, first served” principle
may come in. There was no evidence from any party as to how the
actual approval of the networks or the allocation of streets
and the
like, operated in practice or were treated by the CoT.
4.9
Both sets of parties referred to principles applicable to contractual
contexts
and how the issue of competing performers of obligations are
to be treated. In this regard, the applicant urged the court
to
apply “equitable” considerations (such as those discussed
in contractual environments by the learned author Christie
in
The
Law of Contract in South Africa
, 5
th
ed at paragraph
525 – 526).
4.10
As already described in paragraph 4.6 above, this is strictly
speaking not a contractual issue,
it is an issue concerning the
manner in which the CoT gave out authorizations to perform services
in infrastructure areas under
its control. It is to CoT that
the parties must look for the management and control of the services
performed by the parties
in terms of those authorisations (wayleaves)
and how the CoT enforces or applies its own Trenching Policy.
4.11
It follows that the review and interdictory relief which the
applicant seeks, cannot be granted.
[5]
Costs
5.1
Had the CoT participated in the litigation, I would have had no
hesitation in
ordering it to pay the costs of the litigation,
resulting from the debacle it had created. CoT however, did not
partake in the
litigation as already explained earlier.
5.2
The result of a refusal of relief claimed by the applicant generally
means that
Metrofibre and Afritel will have been substantially
successful. The general rule is that costs should follow the
event.
5.3
I do find, however, that the two respondents’ approach to the
debacle
created by the CoT was one pure self-interest. No particulars
were furnished as to the extent of their activities, either
geographically
or in respect of the remaining period of validity of
their wayleave. Apart from the generality expressed regarding
use of
their trenches when the issue of alternate remedies were
argued from a legal perspective, no practical co-operation or
substantive
particularly was disclosed so that the applicant could
determine the extent of possible beneficial use (or not) of existing
trenching.
Where allegations have been made regarding damage
caused by the two respondents and their conventional trenching
method, these
were either ignored or dealt with nonchalantly by
averring that such damages are for the account of CoT and not the
applicant.
5.4
In the exercise of the court’s broad discretion regarding
costs, I therefore
intend ordering each party to pay its own costs.
[6]
Order:
1.
The application is dismissed.
2.
Each party is ordered to pay its own costs.
N
DAVIS
Judge
of the High Court
Gauteng
Division, Pretoria
Date
of Hearing: 30 April 2021
Judgment
delivered: 4 May 2021
APPEARANCES:
For the Applicant:
Adv I Mureriwa
Attorney
for the Applicant:
SE
Kanyoka Attorney, Pretoria
For the Second
Respondent:
Adv G V R Fouché
Attorney for Second
Respondent:
Anton Kotze Makda Cull Inc,
Johannesburg
For the Third
Respondent:
Adv R J Bouwer
Attorney for Third
Respondent:
Craig
Berg Inc Attorney,
c/o Savage Jooste &
Adams, Pretoria