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[2014] ZAGPPHC 166
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City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and Others (6859/2014) [2014] ZAGPPHC 166; [2014] 2 All SA 559 (GP) (27 March 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO: 6859/2014
DATE:
27 MARCH 2014
In the matter
between:
CITY OF TSHWANE
METROPOLITAN MUNICIPALITY
.............................
Applicant
And
LINK AFRICA (PTY)
LTD
...................................................................
First
Respondent
MINISTER OF
JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
.............................................................................
Second
Respondent
MINISTER OF
COMMUNICATIONS
.............................................
Third
Respondent
J U
D G M E N T
AVVAKOUMIDES, AJ
INTRODUCTION AND
BACKGROUND
1.This case involves
the attempts by the by the first respondent (Link Africa) to exercise
what it describes as its statutory powers
under the Electronic
Communications Act 36 of 2005 (the ECA) to construct and develop a
fibre-optic electronic communications network
within the jurisdiction
of the City of Tshwane (the City).
2.It is common cause
that Link Africa is the holder of an electronic communications
network services (ECNS) license granted by The
Independent
Communications Authority of South Africa (ICASA) in terms of ECA.
The first respondent alleges that the license confers
upon it various
statutory powers under sections 22 and 24 of the ECA, enabling it to
construct and maintain an electronic communications
network
consisting of fibre optic cables. It is those powers that Link
Africa seeks to exercise. It seeks to do so by deploying
its
patented FOCUS™ technology, in the City’s municipal area,
including in particular in the City’s existing
service ducts,
sewer and storm water infrastructure.
3.The City has
brought this application to prevent Link Africa from constructing and
developing its network. It seeks final relief.
The first respondent
alleges that the relief sought is inappropriate because:
3.1the City’s
core contentions are inconsistent with a binding and recent
interpretation of the Supreme Court of Appeal with
regard to section
22 of the ECA, referred to hereunder.
3.2the City has not
demonstrated that it will suffer any prejudice at all were Link
Africa to proceed to construct its network.
3.3the City has also
not demonstrated that other ECNS licensees or Link Africa’s
competitors will suffer any prejudice at
all were Link Africa to
proceed to construct its network.
3.4by contrast, Link
Africa has demonstrated that it will suffer considerable prejudice
were the relief sought by the City to be
granted and indeed has
already suffered prejudice by virtue of the present application.
3.5it is common
cause that South Africa is facing serious problems regarding a lack
of broadband capacity, which is in turn causing
serious economic
difficulties for the country. Link Africa’s construction of its
network would be in line with the call of
the Minister of
Communications for greater broadband capacity availability to be
developed to remedy these problems.
3.6Link Africa’s
construction of its network will ultimately benefit members of the
public and businesses who will make use
of the network.
4.The answering
papers of Link Africa set out fully the history of this matter, the
nature of ECN networks, the broadband difficulties
facing the country
and the plans of Link Africa in relation to its network. The
essential facts are not disputed by the City.
5.The real issues
are contained in three legal contentions of the City which are the
following:
5.1Firstly, Mr
Ngalwana who with Mr Khumalo, appeared for the City contended that
sections 22 and 24 of the ECA do not entitle Link
Africa to construct
its network without the City’s consent.
5.2Secondly, the
City contends that Link Africa’s decision to construct its
network falls to be reviewed and set aside.
5.3Thirdly, the City
contends, in the alternative that sections 22 and 24 of the ECA fall
to be declared unconstitutional and invalid.
6. The first
respondent contends that each of the legal contentions are untenable.
THE PROPER
INTERPRETATION OF SECTIONS 22 AND 24 OF THE ECA
7.The objects of the
ECA contained in section 2 thereof include the following:
7.1Promoting the
universal provision of electronic communications networks and
electronic communications services and connectivity
for all;
7.2Ensuring the
provision of a variety of quality communications services at
reasonable prices; and
7.3Promoting the
interests of consumers with regard to the price, quality and the
variety of electronic communications services.
8.In line with these
aims, sections 22 and 24 of the ECA grant various rights to ECNS
licensees to allow them to construct and install
electronic
communications networks. These sections provide as follows:
“22 Entry
upon and construction of lines across land and waterways
(1)An electronic
communications network service licensee may-
(a)enter upon any
land, including any street, road, footpath or land reserved for
public purposes, any railway and any waterway
of the Republic;
(b)construct and
maintain 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 purpose, any railway and any waterway of the
Republic; and
(c)alter or remove
its electronic communications network or electronic communications
facilities, and may for that purpose attach
wires, stays or any other
kind of support to any building or other structure.
(2)In taking any
action in terms of subsection (1), due regard must be had to
applicable law and the environmental policy of the
Republic.”
“24Pipes under
streets
(1)An electronic
communications network service licensee may, after providing thirty
(30) days prior written notice to the local
authority or person
owning or responsible for the care and maintenance of any street,
road or footpath-
(a)construct and
maintain in the manner specified in that notice any pipes, tunnels or
tubes required for electronic communications
network facilities under
any such street, road or footpath;
(b)alter or remove
any pipes, tunnels or tubes required for electronic communications
network facilities under any such street,
road or footpath and may
for such purposes break or open up any street, road or footpath; and
(c)alter the
position of any pipe, not being a sewer drain or main, for the supply
of water, gas or electricity.
(2)The local
authority or person to whom any such pipe belongs or by whom it is
used is entitled, at all times while any work in
connection with the
alteration in the position of that pipe is in progress, to supervise
that work.
(3)The licensee must
pay all reasonable expenses incurred by any such local authority or
person in connection with any alteration
or removal under this
section or any supervision of work relating to such alteration.”
9.Mr Ngalwana
submitted that, notwithstanding the breadth of the powers conferred
by these sections, they do not entitle an ECNS
licensee to exercise
them unless the City consents thereto.
10.Mr Budlender who
appeared for the first respondent submitted that the argument about
the consent is directly at odds with the
decision of the Supreme
Court of Appeal in the recent matter of Mobile Telephone Networks
(Pty) Ltd v SMI Trading CC
2012 (6) SA 638
(SCA). That matter
concerned a base station constructed by another ECNS licensee, MTN,
on land belonging to a private landowner.
The case turned on the
proper construction of section 22 of the ECA. The landowner argued,
and as I understand, so does the City
in this case, that:
“[A] purposive
construction of s 22 would not authorise a licensee to occupy the
land indefinitely but that s 22(2), by emphasising
that the actions
in terms of s 22(1) must be taken 'with due regard for applicable
law', also referred to private landownership.
A proper,
constitutional, interpretation thus meant that the consent of the
landowner had to be obtained for an exercise of the
rights in terms
of s 22(1).”
11.However, the
Supreme Court of Appeal in the MTN judgment rejected this contention.
Malan JA stated as follows:
“I find this
interpretation 'unduly strained'. It cannot be correct simply because
the reason for the powers given by s 22(1)
would fall away if consent
of the owner were to be a requirement. Section 22(1) specifically
dispenses with the need to obtain
the owner's consent. It is no
answer to suggest that, because no provision is made for, for
example, the delictual liability of
the licensee, limitations on the
liability of the landowner and responsibility to maintain access
roads, an agreement of lease
or other agreement is required. It seems
to me that the general provisions of the law are sufficient to
provide for these eventualities.
The words 'with due regard'
generally mean 'with proper consideration' and, in the context,
impose a duty on the licensee to consider
and submit to the
applicable law. This duty arises only when the licensee is engaged
'in taking any action in terms of subsection
(1)': the 'action'
referred to by s 22(1) is entering, constructing and maintaining,
altering and removing. These actions are authorised.
It is 'in their
taking' that due regard must be had to the applicable law. A fortiori
the 'applicable law' cannot limit the very
action that is authorised
by s 22(1).”
12.The City’s
core contentions appear to be in conflict with the, directly on
point, decision of the Supreme Court of Appeal
to which I am bound.
13.Mr Ngalwana
submitted that there is a distinction between this case and the MTN
case. He argued that the MTN case concerned a
private landowner
relying on his common law rights of ownership, whereas this case
concerns a public landowner relying on the Municipal
Asset Transfer
Regulations, 2008 (the MAT Regulations).
14.Mr Budlender
submitted that the MAT Regulations are not applicable and do not
assist the City for the following reasons:
14.1Section 22(1) of
the ECA sets out the powers of ECNS licensees in respect of “any
land”. It goes on to expressly
specify that this includes any
“street, road, footpath or land reserved for public purposes”.
It appears to be rather
clear that the powers of ECNS licensees
apply both to private and public land.
14.2The Supreme
Court of Appeal appears to have considered this aspect in explaining
that “section 22(1) empowers a licensee
to enter upon public
and private land, construct and maintain its network or facilities
and alter and remove them”.
14.3Section 22 does
not set out two regimes, one applicable to private land and one
applicable to public land. On the contrary,
it sets out a single
regime applicable to both public and private land. The section thus
cannot mean different things depending
on whether it is being use for
public or private land.
14.4Moreover, while
the City repeatedly emphasises the MAT Regulations that apply to the
City’s land, it surely cannot suggest
that these are of a
higher order than the private land ownership rights at issue in the
MTN case. This is especially the case seeing
as the Supreme Court of
Appeal expressly recognised that those private rights fell within the
protection of the constitutional
right to property guaranteed by
section 25(1) of the Constitution.
15.Mr Budlender
submitted further that even if the City’s argument regarding
section 22(1) of the ECA were tenable it appears
to have overlooked
the even broader powers afforded by section 24 of the ECA.
16.Section 24 of the
ECA deals with the powers of ECNS licensees in relation to networks
that are to be constructed or maintained
in pipes, tunnels or tubes
underneath any street, road or footpath. This section did not arise
in the MTN case because that case
involved a base station – not
a network underground.
17.Section 24(1) of
the ECA is clear that the ECNS licensees have the rights to construct
and maintain such underground networks
subject only to the duty to
give 30 days “prior written notice” to the local
authority concerned. The City’s
contention in this regard can
thus not hold any water.
18.The rights of the
local authority are then specified by sections 24(2) and 24(3).
These rights are only that the local authority
is entitled at all
times to supervise the work concerned and that the ECNS licensee must
pay all reasonable expenses incurred by
the local authority in
connection with the construction and maintenance of the networks or
the supervision referred to.
19.It must follow in
my view and correctly submitted by Mr Budlender, that it simply
cannot mean that a local authority must give
its consent before
section 24 powers are exercised. To do so would render the section
largely meaningless.
20.Mr Budlender
submitted for all of these reasons the City’s interpretative
argument regarding consent is untenable. I agree.
THE CITY’S
ATTEMPT TO REVIEW AND SET ASIDE THE LINK AFRICA DECISION
21.Mr Ngalwana
submitted that the City’s contention is that the decision of
Link Africa to construct and deploy its network
falls to be reviewed
and set aside in terms of the Promotion of Administrative Justice Act
3 of 2000 (PAJA).
22.In light of the
MTN judgment it does appear to me that a decision by an ECNS licensee
to exercise its section 22(1) powers amounts
to administrative action
under PAJA. It is thus subject to review by the party affected by it.
23.Mr Budlender
submitted however that the City’s attempts to review Link
Africa’s decision in this case are fatally
flawed for three
reasons as more fully appear hereunder.
Unreasonable
delay
24.The attempted
review should be dismissed on the grounds of unreasonable delay.
25.The first time
that the City sought to review the Link Africa decision was in its
amended Notice of Motion and supplementary
founding affidavit filed
on 4 March 2014. This was more than four months after Link Africa had
informed the City of its decision,
on 1 November 2013.
26.When Link Africa
raised this question of unreasonable delay, the City elected not to
provide any explanation at all for its delay.
Instead, it resorted to
a contention that because the review had been launched within 180
days of the decision, no question of
delay could arise.
27.This however,
submitted the first respondent, involves a misunderstanding of PAJA.
Section 7(1) (b) of PAJA provides that an
application for judicial
review “must be instituted without unreasonable delay and not
later than 180 days after the date
… on which the person
concerned was informed of the administrative action”.
28.I was referred to
Professor Hoexter, the leading authority on administrative law, who
in her book Hoexter, Administrative Law
in South Africa (2012) at
534 has explained the effect of this provision: “[I]t is
possible for a delay to be found to be
unreasonable even if
proceedings are brought within the 180- day limit.”
29.The High Court in
the decision of Thabo Mogudi Security Services CC v Randfontein Local
Municipality
[2010] 4 All SA 314
(GSJ) at para 59 has adopted the
same position: “Section 7(1) requires that the proceedings for
judicial review must be instituted
"without unreasonable delay
and not later than 180 days ...". This entails a twofold
enquiry. The first is whether the
proceedings were instituted
"without unreasonable delay". If they were not, then the
enquiry ends there, without having
regard to whether such proceedings
were instituted within a period of 180 days. In other words, a period
less than 180 days could
be found by the court to constitute
unreasonable delay.”
30.In the present
case, the City has not denied the averment that there has been
prejudice caused to Link Africa by the delay and
has not offered any
explanation for its delay. This is despite the duty resting on the
City to do so. See Lion Match Co Ltd v Paper
Printing Wood &
Allied Workers Union and Others
2001 (4) SA 149
(SCA) at para 35.
31.On this basis,
the first respondent submits that the complaint of unreasonable delay
must be upheld and the application must
be dismissed on this basis
alone. I agree with the submissions of Mr Budlender and find that the
delay was indeed unreasonable
given the circumstances.
No regard to the
MAT regulations
32.The main ground
of review relied on by the City is the contention that the Link
Africa could not have had due regard to the MAT
Regulations.
33.However, Link
Africa in its answering affidavits answers this contention directly
as follows: “I specifically deny the
allegation that Link
Africa failed to consider relevant considerations. Link Africa gave
careful consideration to all relevant
factors, including considering
the response of the City to Link Africa’s call for
representations, which referred to procurement
processes and
legislation and specifically mentioned the Municipal Asset Transfer
Regulations and the
Public Finance Management Act 1 of 1999
; and
considering and giving due regard to all legislation which was
potentially relevant, including section 217 of the Constitution
and
the provisions of the
Local Government: Municipal Systems Act 32 of
2000
.”
34.The City sought
to contest the truth of this factual allegation. The first respondent
submitted that the City cannot be permitted
to do so because in an
opposed application Link Africa’s allegations therefore must be
accepted unless it is “so far-fetched
or clearly untenable that
the Court is justified in rejecting them merely on the papers”.
See Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3)
SA 623
(A) at 634E – 635C.
35.Mr Budlender
submitted that the fact that the City might disagree with Link
Africa’s decision is one thing but it cannot
contend that its
disagreement is such that Link Africa must be disbelieved or that it
has committed a reviewable irregularity.
To do so would be to
collapse the distinction between appeal and review. I am also in
agreement with the first respondent’s
submission in this
regard.
The due regard
standard
36.Third, and in any
event, it must be borne in mind that the “due regard”
standard relied on by the City in its review
application only appears
in
section 22
of the ECA, not
section 24.
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37.That latter
section contains no such qualification and requires only that 30
days’ notice be given – which was plainly
the case. Link
Africa had always indicated that it was relying on both its
section
22
and
section 24
powers. Either is sufficient to allow it to
proceed.
38.For this reason,
even if Link Africa’s exercise of its
section 22
powers was
irregular it is entitled to proceed to exercise its
section 24
powers
to construct and maintain its network.
39.Mr Budlender thus
submitted that the review therefore falls to be dismissed. I am
inclined to agree.
THE
CONSTITUTIONAL CHALLENGE
40.Lastly the City
submitted that the court ought to declare
sections 22
and
24
of the
ECA to be unconstitutional. Two contentions were submitted in this
regard. First, the City asserts in a single sentence
that because
sections 22
and
24
do not require the landowner’s consent it is
“patently unconstitutional because it permits arbitrary
deprivation of
property in contravention of section 25 of the
Constitution.”
41.Section 25(1) of
the Constitution provides as follows: “No one may be deprived
of property except in terms of law of general
application, and no law
may permit arbitrary deprivation of property.” The City’s
contention appears to be that it
is the bearer of the right to
property under section 25 of the Constitution. That, as submitted by
Mr Budlender, is a novel proposition
and for which the City cited no
authority.
42.It is also
inconsistent with section 7(1) of the Constitution which provides
that the “This Bill of Rights … enshrines
the rights of
all people in our country”. It is thus difficult to understand
how the City could be said to be one of those
people.
43.These contentions
are again inconsistent with the MTN judgment. It is correct, as the
City contends that there was no constitutional
challenge in that
case. But the reasoning of that judgment nevertheless bears directly
on the sustainability of the City’s
contentions.
44.In this regard
the judgment rejected the notion that section 22 of the ECA allowed
for an arbitrary deprivation of property.
The court reached this
conclusion because it held:
44.1Not all
deprivations of property are arbitrary. Everything depends on the
extent of the deprivation, viewed against the purpose
of the
deprivation.
44.2Any decision by
an ECNS licensee which gave rise to an arbitrary deprivation of
property would not be permitted by section 22
of the ECA and would be
set aside on review.
45.The court’s
reasoning makes clear that the section cannot be regarded as giving
rise to, or permitting, an arbitrary deprivation
of property.
46.In the present
case the City could not explain why the deprivation of property
occasioned by the Link Africa decision is arbitrary.
47.The facts
demonstrate that:
47.1The need to
roll-out networks such as the Link Africa network is acute and is
essential to avoid negative effects on the South
African economy.
47.2There is no
tenable suggestion of any disadvantage to the City.
47.3The deployment
of Link Africa’s network in the City’s sewer system
involves a series of advantages to the City and
those people and
businesses requiring network access (I quote from the first
respondent’s answering affidavit):
“68.1fibre-optic
cables are installed using existing underground infrastructure;
68.2the technology
used avoids the high costs and disruption associated with the
traditional road digging method of installing cables;
68.3the municipality
derives some additional benefit to its sewer network – CCTV
footage and pipe cleaning free of charge;
68.4it is a faster
and more effective product in the implementation process than any
other product in the market; and
68.5it is a safe,
secure network with virtually unlimited bandwidth.”
48.In the
circumstances, the constitutional argument based section 25 of the
Constitution should fail.
49.The second
contention is that sections 22 and 24 of the ECA are unconstitutional
because (on the City’s contention) they
are at odds with other
provisions of the law.
50.Mr Budlender
submitted that quite apart from the fact that the City’s
interpretation is not well-founded, the argument
is again untenable
because there is no principle of law which says that a statute
dealing with issue A is unconstitutional because
it impliedly amends
or affects a statute dealing with issue B. On the contrary, our
courts have developed various presumptions
of interpretation to deal
with exactly this issue.
51.The City moreover
cannot point to a single provision of the Constitution that is said
to be violated by sections 22 and 24. Instead,
its attack is in truth
and expression of its unhappiness at the approach taken by
Parliament. Whatever the merits of this unhappiness,
it does not give
rise to unconstitutionality.
52.This is made
clear by decisions of the Constitutional Court dealing with the
rationality requirement of the Constitution. In
the case of Merafong
Demarcation Forum and Others v President of the Republic of South
Africa and Others
[2008] ZACC 10
;
2008 (5) SA 171
(CC) paras 62 – 63 the
Constitutional Court held: “The fact that rationality is an
important requirement for the exercise
of power in a constitutional
state does not mean that a court may take over the function of
government to formulate and implement
policy. If more ways than one
are available to deal with a problem or achieve an objective through
legislation, any preference
which a court has is immaterial. There
must merely be a rationally objective basis justifying the conduct of
the legislature.”
CONCLUSION
53. In all the
circumstances I am of the view that all three contentions of the City
cannot succeed for the reasons given above.
The applicant has not
established a right to any relief, and its application falls to be
dismissed in its entirety, with costs.
54. Consequently the
application is dismissed with costs.
AVVAKOUMIDES, AJ
JUDGE OF THE HIGH
COURT
Representation
for the Applicant:
Counsel Adv V
Ngalwana with Adv Khumalo
Instructed
by Dlamini Attorneys
Representation
for First Respondent:
Counsel Adv: S
Budlender
Instructed by:
Bowman Gilfillan