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[2019] ZASCA 37
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Dennegeur Estate Home Owners Association and Another v Telkom SA SOC Ltd and Another (366/2018) [2019] ZASCA 37; 2019 (4) SA 451 (SCA) (29 March 2019)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 366/2018
In
the matter between:
DENNEGEUR
ESTATE HOME OWNERS ASSOCIATION FIRST
APPELLANT
VODACOM
(PTY)
LTD SECOND
APPELLANT
and
TELKOM
SA SOC
LTD RESPONDENT
and
CITY OF CAPE
TOWN AMICUS
CURIAE
Neutral
citation:
Dennegeur Estate v Telkom
(366/2018)
[2019] ZASCA 37
(29 March
2019)
Coram:
Lewis ADP, Ponnan and Zondi JJA and
Dlodlo and Eksteen AJJA
Heard:
18 March 2019
Delivered:
29 March 2019
Summary
:
Spoliation –
Electronic Communications Act 36 of 2005
–
installation by Telkom of copper cables in portion of underground
plastic sleeves, the property of the land owner, does
not amount to
possession – installation by Vodacom of optic fibre cables in
the same sleeves did not disturb Telkom’s
use – does not
amount to spoliation.
ORDER
On
appeal from:
Western Cape Division of
the High Court, Cape Town (Saldanha J sitting as court of first
instance):
1 The appeal is upheld.
2 The respondent is ordered to pay the
appellants’ costs, including the costs of two counsel and the
costs of the amicus curiae.
3 The order of the court a quo is set
aside and replaced with the following:
‘
The
application is dismissed with costs, such costs to include the costs
of two counsel where applicable.’
JUDGMENT
Eksteen
AJA (Lewis ADP, Ponnan and Zondi JJA and Dlodlo AJA concurring):
[1]
On 26 July 2017 the respondent, Telkom SA Soc Ltd (Telkom), obtained
a spoliation order against the appellants to restore to
it, ante
omnia, the undisturbed possession of its underground ducts, sleeves,
manhole covers (the infrastructure) and copper cables
(the cables)
within the Dennegeur Residential Estate (Dennegeur). The appellants
appeal against this order with leave of this court,
the judge a quo
having refused leave. Subsequent to the granting of leave to appeal
the City of Cape Town successfully applied
to be admitted as amicus
curiae in the appeal.
[2]
Essentially, three issues arise for determination in the appeal.
First, whether Telkom had possession for purposes of the mandament
van spolie (the mandament) of the cables and infrastructure
constructed on and under Dennegeur and which is the property of the
first appellant, Dennegeur Estate Home Owners Association (the HOA),
alternatively, whether it enjoyed quasi possession of the
right to
the exclusive use thereof by virtue of the provisions of s 22 of the
Electronic Communications Act 36 of 2005 (ECA);
second, in the
event that it is found that Telkom did enjoy possession or quasi
possession as aforesaid, whether the second appellant,
Vodacom (Pty)
Ltd (Vodacom), committed an act of spoliation by installing its optic
fibre cables in the same underground ducts
and sleeves as that in
which Telkom had installed the cables; and third, in the event that
the first two issues are decided in
Telkom’s favour, whether
Telkom had, by the delay in instituting proceedings, acquiesced in
the conduct of Vodacom so as
to preclude the relief which was
granted. The facts giving rise to the dispute and the circumstances
leading up to litigation are
set out below.
[3]
Dennegeur is a private security lifestyle residential estate situated
in Somerset West and the HOA is the Home Owners Association
of the
estate. Dennegeur was established and developed over a period of time
commencing approximately twenty years prior to the
litigation. At the
time the developers had requested Telkom to provide telecommunication
services to Dennegeur. The infrastructure
was built and installed by
the developer at no cost to Telkom but in consultation with and under
the auspices of Telkom. Telkom
provided the plans indicating the
positions of the required pipes and pipe junction boxes and
specification drawings for the construction
thereof. It appointed a
contract representative to monitor and oversee the progress and to
ensure compliance with the infrastructure
plan and specifications. It
is apparent from the correspondence exchanged with the developers at
the time that Telkom envisaged
that the infrastructure would be for
its exclusive use.
[4]
Upon completion of the infrastructure and during 2000 Telkom
installed the cables in the infrastructure thereby creating a
telecommunications network. Telkom has at all material times since
the installation of the network enjoyed access to the network
and
maintained it. The manholes forming part of the infrastructure were
kept closed by means of metal manhole covers which served
to protect
the network from disturbance, obstruction or impediments. The manhole
covers could be opened by means of a T- key. A
T- key, it appears, is
more of a tool than a key and is freely available in the market to
any person seeking to open a manhole.
[5]
Both Telkom and Vodacom are licensed electronic communications
network service providers in terms of the ECA. Telkom has at
all
material times provided certain home owners in Dennegeur with an
Asymmetric Digital Subscriber Line (ADSL) internet service.
The
service is provided by means of Telkom’s network as described
earlier. Telkom also provided similar services to a number
of other
private residential estates in the immediate vicinity of Dennegeur
where similar infrastructure had been established.
[6]
During approximately 2015 a number of home owners in Dennegeur
expressed an interest in the installation of optic fibre high
speed
internet access and the HOA accordingly approached Telkom to provide
such a service. In response, Telkom intimated its intention
to roll
out its optic fibre connectivity to four residential estates situated
in proximity to one another simultaneously. The estates
would be
required to share the costs of building, and maintaining power to, an
equipment room which would service all four estates.
Moreover,
Telkom required an initial start-up fee. In these circumstances the
HOA entered into negotiations with the home owners
associations of
Somerset Heights, Meerhof and Boskloof, being the other three
residential estates forming part of Telkom’s
intended roll out.
They were, however, unable to reach agreement in respect of the fair
allocation of the costs involved.
[7]
The HOA then entered into negotiation with Vodacom to install an
optic fibre network in the infrastructure at Dennegeur which,
it is
common cause, is the property of the HOA. Vodacom agreed to do so.
Thus, when Telkom acknowledged, on 6 November 2015, that
its initial
suggestion to combine the four estates for economies of scale was not
a good idea and offered to deliver optic fibre
high speed internet
access to Dennegeur during 2016, the offer was rejected.
[8]
Vodacom proceeded early in 2016, at the instance of the HOA, to
install its optic fibre network in the infrastructure on Dennegeur.
On 18 February 2016, during the process of installation, one of
Telkom’s cables was damaged thus affecting the connectivity
to
five of its customers and home owners at Dennegeur. The damaged cable
was repaired by Telkom on 24 February 2016 and the service
reinstated. On 2 March 2016 Telkom became aware that the HOA had
granted permission to Vodacom to install its optic fibre network
at
Dennegeur. There is no evidence that Telkom lodged any formal protest
either to the HOA or to Vodacom and Vodacom continued
with its
installation which was completed by early May 2016. The spoliation
application was launched on 10 November 2016.
[9]
Telkom’s claim is founded on the mandament. The mandament is
available where:
‘
(a)
a person has been deprived unlawfully of the whole or part of his or
her possession of movables or immovables;
(b)
a joint possessor has been deprived of his or her co possession
by his or her partner taking over exclusive control of
the thing held
in joint possession;
(c)
a person has been deprived unlawfully of his or her
quasi
-possession
of a servitutal right; or
(d)
a person has been deprived unlawfully of his or her
quasi
-possession
of other incorporeal rights.’
[1]
[10]
In the case of movable or immovable
property (as in paras (a) and (b) above) the remedy is available to a
person who has been deprived
of his or her actual physical possession
or co-possession of the subject property. In order for such
possession to be established
two requirements have to be met:
‘
(i)
the person needs to be in effective physical control of the thing:
and
(ii)
needs to have the intention to derive some benefit from the
possession.
[2]
[11]
It is argued on behalf of Telkom that it was in actual physical
possession of the infrastructure and the cables by virtue of
the
presence of the cables therein and the fact that it was entitled,
whenever necessary, physically to access the infrastructure
for
repair, maintenance and upgrading purposes. The submission, in my
view, is clearly untenable. It is true that the measure of
physical
control required to acquire possession of a thing may vary depending
on numerous factors, such as the nature and purpose
of the thing. In
the present case, however, although Telkom may have accessed the
infrastructure to its benefit, even to its exclusive
benefit, the
indisputable facts establish that the infrastructure forms an
integral part of the immovable property which is owned,
occupied and
controlled by the HOA in a security estate. Telkom is required to
seek consent to enter the property on each occasion
that it seeks to
attend to the infrastructure. The fact that manhole covers could only
be opened with a T-key does not assist in
circumstances where a T-key
is freely available on the market to any person who might wish to
open the manhole. Telkom was
not in physical possession of the
infrastructure or the cables.
[12]
The right which Telkom asserts is derived from s 22 of the ECA. The
section provides:
‘
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 in
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 purposes, any railway and any waterway in 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.’
[13]
In
Link
Africa
[3]
the
Constitutional Court considered the effect of s 22 of the ECA.
Cameron and Froneman JJ, writing for the majority, after examining
the history of common-law servitudes in South Africa held:
‘
What
s 22 does is wholly conformable with this long history. In effect,
the statute creates what used to be called ‘public
servitudes’.
. . . The statutory provisions provide powers and rights to
electronic communications network service
licensees (network
licensees) that they must exercise for the benefit of the public in
general. The right vests in the network
licensees upon grant of
licence.’
[4]
[14]
They proceeded to discuss the provisions of s 22 and the effect of
servitudes in general, then concluded:
‘
This
means:
(a)
Network
licensees may select the premises and access to them for the purposes
of constructing, maintaining, altering, or removing
their electronic
communications network or facilities in taking action in terms of s
22(1);
(b)
this
selection must be done in a civil and reasonable manner. This would
include giving reasonable notice to the owner of the property
where
they intend locating their works. The proposed access to the property
must be determined in consultation with the owner;
(c)
compensation
in proportion to the advantage gained by the network licensees and
the disadvantages suffered by the owner is payable
in respect of the
exercise of the public servitude s 22 (1) grants; and
(d)
where
disputes arise about the manner of exercising the rights under s
22(1) or the extent of the compensation payable, these must
be
determined by way of dispute resolution to the extent that it is
possible, or by way of adjudication. Access to the property
in the
absence of resolution would be unlawful.’
[5]
[15]
The rights afforded by s 22 of the ECA are in their nature
servitutal. Telkom enjoyed the right to enter into the property
of a
land owner in order to construct, maintain, alter, or remove
electronic communication networks or facilities in the manner
described in
Link
Africa
.
Quasi-possession of an asserted servitutal right enjoys protection
under the mandament to the extent that it is evidenced by the
actual
or factual exercise of the professed right.
[6]
There can be
no doubt that, by installing the cables into the ducts forming part
of the infrastructure in order to deliver its telephone
and ADSL
internet services, Telkom, by its use of the cables and the space
occupied by the cables, exercised the right which it
enjoyed in terms
of s 22 of the ECA. To that extent it enjoyed quasi-possession of the
servitutal right under s 22.
[16]
On behalf of Telkom it was argued, however, that s 22 gives Telkom
the exclusive rights to the entire infrastructure, including
the
vacant unused space within the ducts which Telkom may in future put
to use when it decides to roll out its optic fibre network.
This, so
it was argued, is so by virtue of the definition of ‘electronic
communications facility’ and the provisions
of s 43 of the
ECA.
[7]
[17]
I do not think that it is necessary for purposes of the appeal to
decide this issue. Whatever the range of rights which may
be bestowed
on Telkom by s 22 (read with the definition of ‘electronic
communications facility’ and s 43), Telkom could
only enjoy
quasi-possession of such rights for purposes of the mandament to the
extent that it actually exercised such rights in
accordance with the
professed servitude. In
Nienaber v
Stuckey
1946 AD 1049
Greenberg JA
emphasised at 1053 that: ‘. . . a spoliation order does
not decide what, apart from possession, the rights
of the parties to
the property spoliated were before the act of spoliation and
merely orders that the status quo be restored’.
[18]
The extent to which Telkom in fact exercised a servitutal right to
the airspace in the ducts under s 22 prior to the alleged
act of
spoliation was, in my view, limited to the use of the space actually
occupied by the cables in the infrastructure across
Dennegeur. A
reservation of airspace for possible future use does not give
quasi-possession thereof to Telkom. In these circumstances
I
consider that Telkom was not in quasi-possession of the entire
infrastructure and particularly it was not in possession of unused
vacant space in the ducts in which Vodacom installed its optic fibre
cables.
[19]
This brings me to the issue of spoliation. Spoliation of a servitutal
right occurs where the quasi-possession of the alleged
right, as
evidenced by the actual exercise of the professed right prior to the
offending act, is disturbed.
[8]
In this case
there was a brief interruption of Telkom’s use when a cable was
accidentally damaged in the course of Vodacom’s
installation of
its optic fibre network. The damage was promptly repaired. This did
not constitute an impediment to Telkom’s
continued exercise of
its right to the use of the ducts for the accommodation of the cables
and it had been fully restored long
before to the launch of the
application.
[20]
Notwithstanding the installation by Vodacom of its optic fibre
network in the same ducts as the cables, Telkom’s actual
use of
the ducts, cables and its service to its customers remains
undisturbed. It has not lost possession of anything. It
remains
entitled to enter into Dennegeur for the purposes set out in s 22 and
its network remains fully functional as it was prior
to Vodacom’s
conduct. There was accordingly no spoliation.
[21]
By virtue of the conclusion at which I have arrived, it is not
necessary to determine the third issue raised, namely Telkom’s
alleged acquiescence in the conduct of Vodacom.
[22]
There remains the issue of costs. No reason has been advanced why the
ordinary rule that costs should follow the result should
not find
application in the present matter. There is, however, the issue of
the amicus curiae’s costs.
[23]
The amicus curiae has a significant interest in the application. In
Link Africa
the Constitutional Court held:
‘
Fast
and reliable electronic communications services have the potential to
improve the quality of life of all people in South Africa.
They do so
through increasing the availability of text, audio and other media at
schools, universities and colleges, and boosting
business and
employment opportunities. . . .
Reliable
electronic communications go beyond just benefiting the commercial
interest of licensees to the detriment of ownership
of property. The
statute is designed to avoid this no-winner conflict. What it seeks
is to bring our country to the edge of social
and economic
development for rural and urban residents in a world in which
technology is so obviously linked to progress.’
[9]
[24]
Municipalities
have an
important role to play in achieving this goal.
Unnecessary
installations of facilities on municipal roads would compromise and
impede the constitutional functions of municipalities
in relation to
their roads. See
Dark
Fibre Africa v City of Cape Town
[2018] ZASCA 168.
They may detrimentally affect a range of matters
which local government has the constitutional right and duty to
administer, including
‘building regulations’, ‘municipal
planning’, ‘municipal roads’, ‘public space’,
‘traffic’.
[10]
For these
reasons I think that the City of Cape Town was justified in joining
as an amicus curiae. Moreover, the arguments presented
on behalf of
the City of Cape Town were of great value in dealing with this case
and I consider that they should also have their
costs.
[11]
[25]
In the result:
1 The appeal is upheld.
2 The respondent is ordered to pay the
appellants’ costs, including the costs of two counsel and the
costs of the amicus curiae.
3 The order of the court a quo is set
aside and replaced with the following:
‘
The
application is dismissed with costs, such costs to include the costs
of two counsel where applicable.’
__________
JW Eksteen
Acting Judge of Appeal
APPEARANCES:
For
Appellant: FA Snyckers SC with ALS Msimang
Instructed
by:
Cliffe
Dekker Hofmeyr, Johannesburg
Webbers,
Bloemfontein
For
Respondent: C Watt-Pringle SC with NL Dyirakumunda
Instructed
by:
Hogan
Lovells (South Africa) Inc, Johannesburg
Matsepes
Inc, Bloemfontein
For
Amicus Curiae: R Paschke
Instructed
by:
CK
Attorneys, Cape Town
Webbers,
Bloemfontein
[1]
See 27
Lawsa
2 ed para 94 and the authorities therein cited.
[2]
See P J Badenhorst et al
Silberberg
and Schoeman’s: The Law of Property
5 ed at 276.
[3]
Tshwane City v Link Africa
& others
[2015] ZACC 29
;
2015 (11) BCLR 1265
(CC);
2015 (6) SA
440
(CC). See also
Dark
Fibre Africa v City of Cape Town
[2018]
ZASCA 168.
[4]
Para 140.
[5]
Para 152.
[6]
Bon
Quelle (Edms) Bpk v Munisipaliteit van Otavi
1989
(1) SA 508 (A).
[7]
Section 43 of the ECA stipulates that electronic communications
network service licensees must, on request, lease electronic
communication facilities to any other person licensed in terms of
the ECA and persons providing services pursuant to a licence
exemption in accordance with the terms and conditions of an
electronic communications facilities leasing agreement.
An
‘electronic communications facility’ is defined in s 1
of the ECA to include, where applicable, ‘space on
or within
poles, ducts, cable trays, manholes, hand holds and conduits’
and ‘cables’.
[8]
Bon Quelle
fn 6; and 27
Lawsa
2 ed para 97.
[9]
Link Africa
fn 3 paras 121-122.
[10]
Section 156(1) read with Part B of Schedule 4 and Part B of Schedule
5 to the Constitution. See also
Dark
Fibre
fn 3.
[11]
Compare
Minister
of Justice and Constitutional Development & others v Southern
African Litigation Centre & others
[2016]
ZASCA 17
;
2016 (4) BCLR 487
(SCA);
2016 (3) SA 317
(SCA) para 111.