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[2019] ZAGPPHC 202
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Telkom SA Soc Limited v Chairperson, Independent Communications and Others (2018/38332) [2019] ZAGPPHC 202 (4 June 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
CASE NO: 2018/38332
4/6/2019
In
the matter between:
TELKOM
SA SOC LIMITED
Applicant
and
CHAIRPERSON,
INDEPENDENT COMMUNICATIONS
AUTHORITY
OF SOUTH AFRICA
1
st
Respondent
INDEPENDENT
COMMUNICATIONS AUTHORITY
OF
SOUTH AFRICA
("ICASA")
2
nd
Respondent
VODACOM
(PTY) LIMITED
3
rd
Respondent
JUDGMENT
MOKOSE
J
Introduction
[1]
This is an application to interdict and thereafter review and set
aside the decision of
the second respondent dated 13 August 2018 in
which it was resolved that it is technically and economically
feasible for the applicant
to grant access and accommodate the fibre
optic cables of the third respondent in the applicant's ducts located
at various residential
estates in the Western Cape.
[2]
At
this point, the applicant is seeking an order suspending the
operation of the decision by the second respondent with immediate
effect and interdicting the second and third respondents pending the
outcome of the review in Part B of this application. The first
and
second respondents do not oppose Part A of the application but the
third respondent opposes the relief sought by the applicant.
Material
background facts
[3]
On 23 December 2015 the third respondent initiated its request to the
second respondent
for access to ducts laid within and around several
residential estates in the Western Cape Province after the applicant
had refused
access to its ducts. The second respondent invited the
applicant to respond without determining the reasonableness of the
request.
[4]
On 8 March 2016 the applicant responded to the invitation
highlighting,
inter alia ,
that:
(i)
it
did not own all of the ducts referred to in the request;
(ii)
the
identified ducts formed part of its electronic communications network
and that it was not technically feasible to accommodate
the third
respondent's fibre optic cables in the ducts as requested.
[5]
In
response, on the 18 April 2016, the third respondent suggested that
an inspection
in loco
be
conducted so as to determine the availability of space in the ducts
which inspection was duly conducted.
[6]
On
7 June 2016 the second respondent requested further information from
the applicant regarding its assertion that a minimum of
thirty per
cent (30%) space should remain unoccupied for maintenance and related
activities and for the applicant's business plans.
[7]
The
applicant responded on 23 June 2016 by providing documents relating
to its business strategies and furnished a technical expert
report by
Detecon Consulting setting out the observations and findings of an
inspection
in loco
of
the applicant's ducts, indicating also that the third respondent had
unlawfully gained access to some of its ducts. The applicant
averred
that it was desirous of resolving the alleged illegal conduct prior
to dealing with the request.
[8]
During
August 2016 the second respondent notified the applicant of its
intention to conduct an inspection
in
loco
and appointed a company, Africa
Analysis, to assist. This inspection was held on 21 November 2016.
However, at this time the applicant
launched an application
interdicting the first respondent and the Home Owners' Association of
Dennegeur Estate in the Western Cape
which interdict was granted.
[9]
The second respondent’s report was completed in March 2018
which report the
applicant seeks to interdict the operation thereof
pending the review of it.
[10] The
third respondent's position is that the current legislation obliges
the applicant to acquiesce
to its request and that the applicant
cannot prefer itself over a prior request made by it. The third
respondent avers that the
applicant does not have "the first
entitlement" to roll out its FTTH (Fibre To The Home)
infrastructure. Furthermore,
it avers that it has undertaken to
confine its access to three residential estates only and has no
immediate intention to roll
out FTTH in the other estates.
Issue
[11] The
issue to be determined by this court in the application for interim
relief is whether the requirements
for granting of interim relief
have been met by the applicant.
Applicable
law
[12] The
requirements for the grant of an interim interdict are as set out in
the matter of Setlogelo v
Setlogelo
[1]
which principles were refined in the matter of National Treasury v
Outa
[2]
by Moseneke DCJ where is was held that the court must find on the
evidence presented that:
(i)
the
applicant has established a
prima
facie
right;
(ii)
a
reasonable apprehension of irreparable and imminent harm if the
interdict is not granted;
(iii)
the balance of convenience must favour
the grant of the interdict;
(iv)
there must be an absence of a similar
protection by any other remedy.
[13]
The principles by which an application
for a temporary interdict are judged are also set out in the matter
of
Webster v Mitchell
[3]
in which it was held that:
"In the grant of a
temporary interdict apart from prejudice involved, the first question
for the court in my view is whether,
if interim protection is given,
the applicant could ever obtain the rights he seeks to protect. Prima
facie that needs to be shown."
[14]
Section 43 of the Electronic
Communications Act 36 of 2005 ("ECA") provides as follows:
"(1)....(a) an electronic
communications network services licence must on request, lease
electronic communications facilities
to any other person licenced in
terms of this Act....in accordance with the terms and conditions of
an electronic communications
facilities leasing agreement entered
into between the parties, unless such request is unreasonable.
(2)
Where
the reasonableness of any request
to
lease electronic communications
facilities is disputed, the party requesting to lease such electronic
communications facilities
may notify the Authority in accordance with
the regulations prescribed in terms of Section 44
(3)
The
authority must withn14 days of receiving the request or such longer
period
as
is
reasonably necessary in the circumstances determine the
reasonableness of the request.
(4)
For
purposes of subsection (1),
a
request is reasonable where the
Authority determines that the requested lease of electronic
communications facilities
-
(a)
is technical and
economically feasible; and.. ....."
[15]
The
court has a discretion whether or not to grant an interdict. No rules
have been laid for the granting or refusal of interdicts
but the
court may decide each case on its own facts. The court must exercise
this discretion judicially upon a consideration of
all the facts.
Prima
facie right
[16]
The
applicant submitted that it had set out sufficient facts to justify a
prima
facie case
for
interim relief pending the outcome of the main review for the
following reasons,
inter alia:
(i)
the
procedural process had been materially unfair in that despite
repeated requests by the applicant to convene a formal enquiry
to
deal with the multiple factual disputes and disputes of expert
witnesses, the second respondent had failed and/or refused such
requests;
(ii)
the
second respondent had made the decision in the face of crucial
material disputes and conflicting expert opinions without resolving
them. Accordingly, the applicant had shown a prima facie case for
review of the second respondent's decision;
(iii)
the
second respondent had relied on information which was not disclosed
to the applicant in order to arrive at the decision;
(iv)
an
incorrect interpretation of Section 43(4)(a) of the ECA where the
second respondent was required to inquire into and make a
determination on the technical feasibility of the third respondent's
request for access;
(v)
the
second respondent's failure to comply with the mandatory provisions
as provided in the ECA;
(vi)
the
second respondent had acted irrationally and unlawfully
prima
facie
when making the decision to
grant the third respondent access to the applicant's ducts and as
such, the decision is tainted and
therefore reviewable.
[17]
The
applicant brought to the court's attention the recommendations of the
second respondent being the following:
"1)
Inform the parties of its findings and instruct Telkom to grant
access to the complainant
at
a
reasonable cost
and under non-discriminatory terms.........
Failure of the parties reaching
an agreement, the Authority should apply any of the three positions
prescribed by section 43 of
the EGA in order to resolve the dispute;
whereby it can...............”
[18]
The procedure is such that should the
parties fail to agree such terms and conditions, the second
respondent should apply any one
of three positions prescribed in
Section 43 of the ECA in order to resolve the matter. It may impose
terms and conditions consistent
with Chapter 8 of the ECA, propose
terms and conditions consistent with Chapter 8 which must be agreed
by the parties within such
specified period or it may refer the
dispute to the Complaints and Compliance Committee ("CCC")
for resolution in accordance
with Section 46 of the Act.
[19]
The applicant accordingly argued that
such a decision can therefore not be implemented immediately.
Accordingly, an interdict must
be granted.
[20]
The third respondent avers that the
applicant seeks only to protect its right to review the second
respondent's decision through
an interim interdict. The third
respondent is of the view that as set out in the National Treasury
matter (supra) the prima facie
right that the claimant must establish
is not merely the right to approach a court in order to review an
administrative decision.
[4]
Given that the right of review is the only right relied upon by the
applicant and that the Constitutional Court has rejected such
argument as a basis to justify interim relief, the applicant's
application should fail.
[21]
The third respondent was also of the
view that the grounds for the review are not
prima
facie
right and as such, the
applicant must show that its rights are being infringed upon in the
interim.
[22]
Having heard the arguments by the
parties, I am of the view that the applicant has set out sufficient
facts to justify a prima
facie case
for interim relief pending the
outcome of the main review. It is evident that the second respondent
failed to comply with the mandatory
provisions of the ECA in that
none of the three positions as prescribed in the ECA have been
complied with to resolve the matter.
Irreparable
Harm
[23]
The
second requirement for an interim interdict is a well-grounded
apprehension of irreparable harm if the interim interdict is
not
granted. The loss may consist of an irredeemable breach of the
applicant's rights.
[24]
The
applicant is of the view that it will suffer irreparable harm as the
implementation of access is likely to bring about irreversible
consequences unless it is interdicted. The harm foreseen by the
applicant includes:
(i)
the
loss of an opportunity to have its submissions considered in
accordance with a fair and legal process as contemplated in the
ECA
as well as the loss of an opportunity to profit from the use its own
ducts;
(ii)
should
the third respondent be allowed to proceed in the interim, it will
become difficult for the applicant to reverse the consequences.
[25]
The
third respondent, on the other hand, is of the view that the only
harm that the applicant would suffer is the harm that would
flow from
"implementation of access" and not that flowing from the
implementation of the second respondent's decision.
Accordingly, the
application must fail because the relief claimed is so broad that it
seeks to interdict conduct which would give
rise to no harm.
[26]
In
reviewing the decision by the second respondent, the review court
will have to consider whether it is just and equitable to reverse
the
actions flowing from the said decision. Some of the decisions will
have irreversible consequences and as such, irreparable
harm may
befall the applicant. Furthermore, the third respondent in its
answering affidavit confirmed that there is 'a significant
advantage
to being the first mover in the FTTH market'. In the premises, I am
of the view that a case has been made out by the
applicant for
irreparable harm which needs to be avoided by means of an interim
interdict.
Balance
of convenience
[27]
The
third requisite for an interim interdict is a balance of convenience
in favour of the granting of the interim relief. The court
must weigh
up the prejudice to the applicant if the interim interdict is refused
against the prejudice to the respondent if it
is granted.
[5]
[28]
The
applicant was of the view that what weighs heavily in its favour is
that the second respondent has failed to comply with the
statutory
pre-conditions for the lawful exercise of its powers. In reply, the
applicant also brought to the court's attention that
it had plans to
rollout fibre optics in the affected residential estate as part of
its strategic plan. Accordingly, it is not convenient
and does not
conduce to orderly administration to allow the third respondent to
proceed with the implementation of the decision
by the first
respondent which will bring about difficulties where a prima facie
case of review has been shown.
[6]
[29]
The third respondent was of the view
that the applicant seeks to resist its entry and commencement of
competition for clients with
the relevant estates. The applicant
will, whilst the proposed interdict is in effect, sign up the clients
and set prices as an
exclusive supplier without competition as to
price or service levels. Permitting its entry will benefit the
residents of the estate
with competitive pricing, so too will they
enjoy the benefit of choice. Accordingly, it will suffer the greater
prejudice should
the interim interdict be granted.
[30]
In assessing the balance of convenience
the court is required to consider various interests including the
prejudice to the applicant
if the interim interdict is refused
against the prejudice to the respondent if it is granted. Having
considered the interests of
both parties, I am of the view that the
prejudice to the applicant in this matter, far outweighs the
prejudice to the third respondent.
As such, a case has been made out
by the applicant in respect of the balance of convenience.
No
other satisfactory remedy
[31]
The fourth requisite for the granting of
an interim interdict is the absence of another adequate ordinary
remedy.
[32]
The third respondent had provided the
applicant with undertakings to pay for any damage that may be
sustained in the process of
removing cables, in the unlikely event
that the third respondent is required to do so. Accordingly, should
the applicant take over
the installed FTTH cables the likelihood of
damage would be minimal as they would not be removed.
[33]
The applicant's complaint is that the
arrival of the third respondent may reduce its ability to make
profits from clients in the
affected estates and as such is without a
remedy. This has not been denied by the third respondents.
[34]
In view of a lack of a challenge to the
applicant's contentions in this regard, I am of the view that the
applicant has no alternative
remedy available to it.
[35]
Accordingly, the following order is
granted:
(i)
the
applicant's non-compliance with the rules relating to time periods,
service and forms and that Part A be disposed of as urgent
in terms
of Rule 6(12) of the Uniform Rules of Court is condoned;
(ii)
pending
the final determination of the relief sought in Part B as set out in
this notice of motion, it is ordered that:
(a)
the
decision of the second respondent, the INDEPENDENT COMMUNICATIONS
AUTHORITY OF SOUTH AFRICA (ICASA) communicated to the applicant
by
letter of 13 April 2018 and purported to be explained in the report
accompanying that letter attached to the founding affidavit
marked
annexures "FA1" and "FA2" to authorise the third
respondent to gain access to the applicant's ducts
located at various
residential estates in the Western Cape is suspended with immediate
effect;
(b)
ICASA
and the third respondent are interdicted and restrained from taking
any steps to implement the decision in any form or shape.
(iii)
the
respondents who oppose Part A of this application jointly and
severally, are liable for costs occasioned by such opposition,
including the cost of two counsel.
MOKOSE J
Judge of the High Court of South
Africa
Gauteng Division, Pretoria
For
the Applicant:
Adv
V Maleka SC
Adv
D Mpofu
Adv
N Mayet
Adv
Kakaza
instructed
by
Werksmans
Attorneys
For the first and Second
Respondents :
Adv R Shana SC
Adv
E Enaber
Instructed
by Mkhabela Huntley Attorneys
For
the Third Respondent:
Adv
F Snyckers SC
Adv
L Mtukushe
instructed
by
Cliffe
Dekker Hofmeyr Inc
Date of Hearing: 1 March 2019
Date of Judgement: 4 June 2019
[1]
1914 AD 221
[2]
2012 (6) SA 223 (CC)
[3]
1948 (1) SA 1186
(W) at 1189
[4]
Setlogelo v Setlogelo
1914 AD 22
at 227
[5]
Tshwane City v Afriforum
2016 (6) SA 279
(CC) at 302B – C
[6]
Esorfranki Pipelines (Pty) Ltd and another v Mopani District
Municipality and others (2014]
2 All SA 493
(SCA) para 20