City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and Others (CCT184/14) [2015] ZACC 29; 2015 (6) SA 440 (CC); 2015 (11) BCLR 1265 (CC) (23 September 2015)

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City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and Others (CCT184/14) [2015] ZACC 29; 2015 (6) SA 440 (CC); 2015 (11) BCLR 1265 (CC) (23 September 2015)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
184/14
In the matter
between:
CITY OF TSHWANE
METROPOLITAN
MUNICIPALITY
Applicant
and
LINK AFRICA (PTY)
LIMITED
First Respondent
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
Second Respondent
MINISTER OF
COMMUNICATIONS
Third Respondent
and
DARK FIBRE AFRICA
(RF) (PTY)
LIMITED
First Intervener
MSUNDUZI
MUNICIPALITY
Second intervener
TELKOM SA SOC
LIMITED
Third Intervener
NEOTEL (PTY)
LIMITED
Fourth Intervener
MOBILE TELEPHONE
NETWORKS (PTY) LIMITED
Fifth Intervener
SMI TRADING
CC
Sixth Intervener
Neutral
citation:
City
of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and
Others
[2015] ZACC 29
Coram:
Moseneke DCJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Madlanga J, Molemela AJ, Nkabinde J, Theron AJ and
Tshiqi AJ
Judgments:
Jafta J and Tshiqi AJ (minority): [1] to [99]
Cameron J and Froneman J (majority): [100] to
[191]
Heard
on:
12 May 2015
Decided
on:
23 September 2015
Summary:
Electronic Communications Act 36 of
2005
— constitutionality of
sections 22
and
24
—
provisions valid
Statutory interpretation — “due regard
to applicable law” —common law of servitudes —
civiliter modo
Section 25 of the Constitution — private
property owner — deprivation — not arbitrary
ORDER
On appeal from the Supreme
Court of Appeal (hearing an appeal from the Gauteng Division of the
High Court, Pretoria):
1.
Leave to appeal is granted.
2.
The appeal is dismissed.
3.
The City of Tshwane Metropolitan
Municipality is ordered to pay the costs of Link Africa (Pty)
Limited.
JUDGMENT
JAFTA J and TSHIQI AJ
(Moseneke DCJ and Nkabinde J concurring):
Introduction
[1] South Africa, like many developing
countries, lags behind developed countries in the field of electronic
communications.
This shortcoming impacts negatively on the
economy of this country.  In order to address this problem,
Parliament has passed
a number of Acts,
[1]
including the
Electronic Communications Act (Act
).
[2]
The present dispute is rooted in the Act which mandates the
Independent Communications Authority of South Africa (ICASA)
–
an organ of state established in terms of the ICASA Act – to
issue three types of licences to qualifying applicants.
[3]
[2] These licences entitle the holder to
construct on the land of another person an electronic communications
network
[4]
or an electronic communications facility.
[5]
Section 22 of the Act lists a number of rights to which the
licence-holder, like Link Africa (Pty) Limited (Link Africa),
is
entitled.
[6]
It was the desire on the part of Link Africa to exercise those
rights on the property of the City of Tshwane Metropolitan

Municipality (City) which triggered these proceedings.  The bone
of contention was whether Link Africa needed to obtain consent
from
the City before it could exercise those rights.  Litigation was
resorted to when agreement on the issue eluded the parties.
Parties
[3] The applicant is the City, defined
as such in section 1 of the Municipal Systems Act.
[7]
The first respondent is Link Africa, a private company duly
registered in accordance with the company laws of the Republic
of
South Africa.  The second respondent is the Minister of Justice
and Constitutional Development and the third respondent
is the
Minister of Communications (Minister).  Both are parties to
these proceedings because of the constitutional issues
that arise.
However
,
only the Minister filed
written
arguments opposing the relief sought by the applicants and was
represented at the hearing
in this Court
.
[4] Link Africa carries on the business
of constructing infrastructure in the field of electronic
communications, for commercial
benefit.  Once constructed, the
infrastructure is let or sold to business entities which provide
internet and other communications
services to the public and
business.  Link Africa installs its fibre infrastructure in the
underground infrastructure of municipalities,
like the water and
sewage systems.  Its network involves clipping the fibre-optic
cables to the top part or floor of the sewer
pipe.  Link
Africa’s network is cheap because it does not involve digging
up trenches for purposes of installing cables
underneath the ground.
[5] Its cables are used for the purposes
of transmitting electronic data, voice and video communications at a
greater speed and
communication capacity.  These cables are as
thin as human hair and are arranged in bundles so as to give them the
ability
to transmit signals over long distances.
Factual background
[6] Link Africa chose the municipal area
of the City as one of the places where it wished to install its
fibre-optic cabling network.
It then approached the City in
June 2011, and in October 2011 submitted a formal proposal to
the City’s Chief Information
Officer.  In terms of
the proposal, the City was required to grant Link Africa the
right to make use of existing municipal
infrastructure, especially
existing service ducts and sewage and storm water infrastructure.  In
exchange for this right of
use, Link Africa would either:
a)
provide the City with the use of two fibre
pairs on all routes deployed, and endeavour to route the fibre-optic
cables as closely
as possible to the City points of interest to
facilitate easy connections; or
b)
pay the City an annual rental on a per
meter basis for the City’s infrastructure used for the
deployment.
[7] At about the same time it also
engaged with the City’s Executive Director for Water and
Sanitation Division.  It
undertook to provide the Water and
Sanitation Division (Division) with a firm proposal for the
deployment of an initial site.  It
identified the Waterkloof
Glen area.  Wayleave notices were submitted and approved.
[8]
[8] The Chief Information Officer gave
the Division the go-ahead to allow Link Africa to use municipal
infrastructure for “
the purpose of
creating
infrastructure that will be used to agree on appropriate
installations and maintenance procedures between the parties”.

On this basis ongoing engagement proceeded between the parties.
Mr Ngobeni, the Municipal Manager for the City,
is
emphatic in his affidavit that this was not an agreement, but should
rather be viewed against the fact that at that stage the
City was
engaged in the formulation and development of its own broadband
strategy and not ready to approve Link Africa’s
proposal.
[9] Following a list of queries and
responses, the Division granted Link Africa permission to “proceed
with physical surveys
of the proposed initial sites”.  A
series of meetings took place and in March 2012 the Division’s
Acting Executive
Director, Mr Pansegrouw, recommended the approval of
Link Africa’s request.  After that, in November, the
City’s
Strategic Executive Director for Services
Infrastructure, Mr Makibinyane also recommended approval and at
the same time, in
his capacity as Acting Deputy City Manager, granted
final approval.
[10] Link Africa published a press
release confirming the installation of the network.  When the
City Manager was alerted to
the approval, he did not endorse it.
He immediately convened a meeting with Link Africa.  Following
this meeting, the
City Manager wrote a letter requesting Link Africa
to halt the installation of the fibre optic cables on the City’s
infrastructure, pending an investigation into the approval by the
City.  Link Africa acceded to this request and temporarily

stopped the installation.
[11] Meanwhile, the Supreme Court of
Appeal delivered its judgment in
MTN.
[9]
Of significance to Link Africa, this judgment asserted that consent
of the landowner was not required if a licence-holder
acts in terms
of the Act.  The Supreme Court of Appeal also held that the
Promotion of Administrative Justice Act
[10]
(PAJA) applies to an action taken in terms of section 22 of the
Act.
[11]
[12] Emboldened by the judgment, Link
Africa gave the City notice purportedly in terms of PAJA and invited
the City to make representations
to it in relation to its proposed
decision.  For compliance with procedural fairness, PAJA
requires notice to be given by
a decision-maker before taking a
decision that adversely affects the rights or legitimate expectations
of another person.
[13] The City Manager responded to Link
Africa’s notice by outlining the new direction the City wanted
to take in relation
to the roll out of broadband connectivity.  And
stated further that the City was in a tender process for the
broadband project
and would have expected Link Africa to tender and
participate in the process if it was serious about partnering with
the City in
the furtherance of its vision to build a “Smart City”.
In the same letter, the City informed Link Africa
that its
request to install an electronic communications network on its
underground infrastructure was refused.  The City
did not make
any representations in terms of PAJA as was anticipated by Link
Africa.
[14] On a subsequent date, Link Africa
provided the City with full reasons for its decision to proceed with
the installation.
[12]
It also informed the City of its right to review the
decision.
[13]
[15] The City did not respond to this
letter nor did any of its representatives attend the “kick-off
meeting” that was
convened by Link Africa.  Link Africa’s
attorneys addressed a letter to the City stating, amongst others,
that as the
City had at no stage sought to review and set aside Link
Africa’s decision to proceed with the installation of its
fibre-optic
cables, Link Africa would proceed with the installation.
Indeed it did.
[16] On 6 December 2013 Link Africa had
already completed phase one of the installation of its fibre-optic
cables in the City’s
underground infrastructure.  Subsequent
to that it was agreed between them that Link Africa would suspend
phase two of the
installation of its fibre-optic cables, if the City
launched interdict proceedings by 27 January 2014.
In the High Court
[17] On 28 January 2014, the City
brought an application in the Gauteng Division of the High Court,
Pretoria (High Court).
The relief sought was divided into four
parts.  In the first part, it sought a declarator that section
22 of the Act requires
consent of the landowner before action
authorised by the section could be undertaken.
[18] In the second part, the City asked
for an interdict restraining Link Africa from taking the actions
listed in section 22, on
the City’s infrastructure without
consent or agreement from the City.  Furthermore, a
mandamus
[14]
directing Link Africa to remove the cables already installed was also
requested.  Part three contained an alternative review
claim.
The City sought to impugn Link Africa’s decision on the basis
that it breached the principle of legality.
[19] The fourth part was devoted to a
constitutional attack against sections 22 and 24 of the Act.
The constitutional
challenge too was advanced as an alternative to
the remedy sought in part one.  This constitutional attack was
grounded in
sections 217(1) and 25(1) of the Constitution.  With
regard to section 217, it was asserted that by authorising
licence-holders
to install an electronic communications network or
facility on municipal infrastructure, section 22 of the Act forces
municipalities
to accept services from licence-holders in
contravention of section 217(1) of the Constitution.
Regarding section 25(1),
it was contended that section 22 permits
arbitrary deprivation of property.
[20] In view of the constitutional
challenge, the Minister of Justice and Constitutional Development and
the Minister of Communications
were joined as respondents.  But
only Link Africa filed papers and opposed the application, contending
that the core proposition
by the City, that its consent is necessary,
is fundamentally flawed and inconsistent with the Supreme Court of
Appeal decision
in
MTN.
The City had not sought to
challenge nor review that decision and was bound by it.  On the
constitutional challenge,
Link Africa contended that
MTN
makes
it clear that the sections are consistent with the Constitution.  It
further argued that the requirements for an interdict
had not been
established.
[21] The High Court (per Avvakoumides
AJ) dismissed the application with costs.  It found that section
22 cannot be construed
as requiring consent of the landowner before
the licence-holder may undertake any of the actions the section
authorises.
In this regard, the High Court considered itself
bound by the judgment of the Supreme Court of Appeal in
MTN
.
Consequently, the interdict was also not granted.
[22] Regarding the review claim, the
High Court upheld the argument advanced by Link Africa to the effect
that there was an unreasonable
delay on the part of the City in
instituting the review.  The Court noted that the City had
furnished no explanation for the
delay, except to argue that the
period of 180 days had not yet lapsed.  The High Court in
declining to entertain the
review, took into account the fact that
the delay had prejudiced Link Africa.
[23] The High Court dismissed the
constitutional attack based on section 25(1) of the Constitution on
two grounds.  First,
the Court considered it doubtful that the
City was the bearer of section 25 rights, for it to rely on the
provisions of that section.
Second, following
MTN
, the
Court held that section 22 does not authorise arbitrary deprivation
of property and that on the present facts what Link Africa
seeks to
do does not constitute deprivation.  Instead, the fibre-optic
cables installed by Link Africa, held the High Court,
would benefit
business and the residents of the City.  The High Court did
not rule on the challenge based on section
217 of the Constitution.
Leave to appeal was subsequently refused by the High Court and later
by the Supreme Court of Appeal;
hence the present application for
leave to this Court.
In this Court
Applications for
intervention
[24] Dark Fibre Africa (RF) (Pty)
Limited (Dark Fibre Africa), Mobile Telephone Networks (Pty) Limited
(Mobile Telephone), Neotel
(Pty) Limited (Neotel), and Telkom SOC
Limited (Telkom) are electronic communications network services
licence-holders in terms
of the Act.  They derive rights from
the Act.  By virtue of their status, they have an interest in
the interpretation
and application of sections 22 and 24 of the Act.
Any determination will have a material effect on their core
functions and
ability to meet their obligations.  They seek
leave to intervene in these proceedings.
[25] Msunduzi Municipality (Msunduzi)
too seeks to be allowed to intervene as a party in these
proceedings.  A dispute arose
between it and Dark Fibre Africa
which wanted to construct electronic communications facilities on
Msunduzi’s infrastructure
without municipal authorisation.
This dispute culminated in an application instituted in the
KwaZulu-Natal Division of the
High Court, Pietermaritzburg which
proceeded on appeal to the Supreme Court of Appeal.
[15]
Having lost the appeal, Msunduzi sought leave to appeal to this
Court.  The application was dismissed primarily because
the
matter involved the interpretation of section 22, without any
constitutional attack.  This Court concluded then that there

were no prospects of it construing the section differently.
Following the filing of the present matter, Msunduzi and Dark
Fibre
Africa were afforded the opportunity to apply for intervention.
[16]
[26] SMI Trading, a private landowner
with interest in the construction and application of the relevant
provisions, also seeks permission
to intervene.  It is the owner
of a farm called Langgewacht No 235 in the Province of
KwaZulu-Natal.  Mobile Telephone
has constructed an electronic
communications facility covering approximately 110 square metres
on the farm.  The facility
is described in the papers as a base
station.  However, the construction of this facility was done in
terms of a lease agreement.
When the lease expired, the parties
failed to reach agreement in terms of which Mobile Telephone could
have continued to maintain
the facility.
[27] Mobile Telephone purported to act
in terms of section 22 of the Act and PAJA when it issued notice in
November 2012, informing
SMI Trading that it would maintain the
facility in the exercise of its rights under section 22.
Mobile Telephone adopted
this stance notwithstanding an existing
eviction order against it, pertaining to the same property.  This
was also despite
its unsuccessful appeal in the Supreme Court of
Appeal.  Mobile Telephone’s conduct triggered yet another
application
by SMI Trading in the Gauteng Local Division of the
High Court, Johannesburg.  That matter is pending before that
Court.
[28] In response to the intervention
applications, the Court thought it prudent that the applications be
argued together with the
merits.  To that end, it issued
directions allowing all the applicants leave to file written
submissions.  At the hearing,
all of them were granted an
opportunity to present oral argument.
[29] The overriding consideration in
these kinds of applications is whether a party has a direct and
substantial interest in the
issues raised.  The interest must be
in the right which is the subject-matter of the litigation and not
merely a financial
interest which is only an indirect interest in
such litigation.
[17]
Once this is shown, then it is in the interests of justice that
such party join the proceedings.
[18]
All the interveners mentioned here satisfy the test and consequently
must all be permitted to intervene.
Jurisdiction
[30] The powers and rights which
sections 22 and 24 of the Act afford to public and private licensees
impact on the rights of public
and private landowners.  Depending
on the interpretation given, the sections may be held to amount to
arbitrary deprivation
of property as envisaged in section 25 of the
Constitution.  This Court thus has jurisdiction.  In any
event, this Court
has been asked, as an alternative, to declare the
provisions of sections 22 and 24 of the Act constitutionally invalid.
Application for leave to
appeal
[31] In both
MTN
and
Msunduzi
the Supreme Court of Appeal was asked to interpret section 22
of the Act and its constitutional validity was not raised.
[19]
In interpreting the term “with due regard to applicable
law” the Supreme Court of Appeal in
MTN
stated that it
imposed a duty on the licensee to consider and submit to the
applicable law.  But in
Msunduzi,
the Supreme Court of
Appeal said that it means that the licensee must comply with
applicable law.  It is necessary for this
Court to give guidance
on the preferred meaning.  The matter is truly of public
importance as the application of the relevant
provisions has the
potential to affect every property owner in this country.
Accordingly, it is in the interests of justice
to grant leave.
Issues
[32] Preliminary matters having been put
to rest, it is now convenient to consider the issues arising.
The first issue is
the interpretation of section 22 of the Act.
More specifically, whether the section requires consent of landowners
before
a licence holder may perform any of the acts listed in
it.  If, when properly construed, the section does not require

consent, the other issue is whether sections 22 and 24 are
inconsistent with section 25(1) of the Constitution and for that
reason
are invalid.
Statutory interpretation
[33] Although the text of a statutory
provision continues to be the starting point in the process of
interpretation, the meaning
assigned to the provision must have
appropriate regard to context, even if the language is clear.
[20]
In this regard, context includes other relevant provisions of the
statute which may reveal the purpose of the interpreted
section.
[21]
The aim being that the meaning assigned to the section must give
effect to the purpose which the law-makers sought to achieve.

But the process of determining that purpose and giving effect to it
should also “promote the spirit, purport and objects
of the
Bill of Rights”.
[22]
[34] The objects of the Bill of Rights
are to be found in the rights guaranteed by it and the values
underlying those rights.
[23]
This means in the process of interpreting section 22 of the Act, we
must pay regard to rights in the Bill of Rights which
may be affected
by the meaning assigned to the section and settle for a construction
that advances those rights.  Where more
than one right is
affected, it is inappropriate to choose a meaning that promotes one
right while at the same time it is at odds
with other rights.
In those circumstances, the promotion of the objects of the Bill of
Rights cannot be confined to the impact
on one right.
[35] This Court in
Phumelela Gaming
and Leisure
[24]
affirmed that where a number of rights are implicated in a provision
under interpretation, all relevant rights must be considered.

In that case Langa CJ said:
“
The
Bill of Rights protects the right to property, and also promotes and
protects other freedoms, notably in this case, the right
to freedom
of trade.  The consequence of the right to freedom of trade is
competition.
. . .
In
the consideration of all the above factors, the promotion of the
spirit, purport and objects of the Bill of Rights cannot be
confined
to the impact on section 25 of the Constitution alone, as Phumelela
seems to suggest.  The process of weighing up
must include
consideration of other provisions of the Bill of Rights which might
be relevant to the issue, for example, as has
already been mentioned,
the right to freedom of trade.”
[25]
[36] Therefore, in construing the
relevant provisions, we must pay attention not only to the rights
contained in the freedom of
expression clause but also to property
rights protected by section 25 of the Constitution.  The freedom
of expression clause
guarantees, among other rights, the right to
receive and impart information or ideas.  The electronic
communications infrastructure
that forms the subject-matter of this
case may advance this right.  But the construction of that
infrastructure on private
land and in terms of section 22 of the Act
may also violate the rights guaranteed by section 25(1).
In promoting the
objects of the Bill of Rights, section 39(2) of the
Constitution enjoins us to consider all rights which may be
implicated by the
interpretation we assign to the relevant sections.
Relevant context
[37] Both sections 22 and 24 are located
in
Chapter
4 of the Act which consists of
sections 20 to 29.  The two sections must be read in the context
of the entire
Chapter
.  Section 20
limits the scope of the
Chapter
to
licensees only.
[26]
A closer reading of section 21 reveals that the purpose of the
Chapter
is to achieve a rapid rollout of
electronic communications networks and communications
facilities.
[27]
The Minister is required to develop a framework that sets out
processes and procedures for, among other matters, obtaining
permits
necessary for the rollout and resolution of disputes that may arise
between a licensee and landowner speedily.
[38] Section 23 obliges a local
authority to provide a conduit pipe or other facility for the
installation of an underground electronic
communications facility
from a point of connection on the street boundary, to a building.
This obligation arises where the
local authority concerned has agreed
with a licensee that electricity supply and electronic communications
services must be provided
by means of an underground cable.
[28]
The cost for the underground pipe or facility is paid for by the
landowner to the local authority and as part of the fee
for the
installation of the electricity supply line.
[29]
But the requirement for a prior agreement applies only where the
infrastructure for electricity supply to a piece of land
is still to
be installed.
[39] Section 25 authorises a licensee to
move an electronic communications facility owing to “any
alteration of alignment
or level or any other work on the part of any
public authority or person”.  The cost of removal is borne
by the local
authority or the person in question.  If the
facility passes over a private property and interferes with the
construction
of a building, the licensee must alter the positioning
of the facility so as to remove all obstacles to the construction.

The landowner must give the licensee a notice of not less than 28
days, requesting the alteration.  A deviation or alteration
for
any other reason depends on whether the licensee considers the
alteration necessary or expedient.  If the licensee agrees
to
make the alteration, the cost is borne by the landowner.
[30]
The licensee bears the cost only if in its opinion an alteration is
justified.  Disputes that arise between the licensee
and
landowner on whether an alteration is necessary must be referred to
the Complaints and Compliance Committee of ICASA.
[40] Section 26 authorises a licensee to
erect a fence on any land where an electronic communications facility
has been constructed.
This may be done without any notice to
the landowner.  However, if the fence so erected renders entry
to the land impossible,
the licensee must build gates and furnish the
landowner with duplicate keys.  But if the landowner herself
wishes to build
a fence, she is obliged to give the licensee written
notice of no less than six weeks.
[31]
[41] Lastly, section 27 authorises the
licensee to cut down trees and remove vegetation without notice to
the landowner if a tree
or vegetation interferes with its electronic
communications facility.
[32]
Where the licensee is of the opinion that a tree or vegetation
growing on land will in future obstruct or interfere with
its
facility, it may give notice to the landowner to cut the tree or
remove the vegetation.  Failing which the licensee may
do the
work itself.
Meaning of section 22
[42] For purposes of undertaking any of
the actions mandated by sections 24 to 27, the licensee must gain
entry into the land, regardless
of whether it is state-owned or
private land.  The requisite entry is authorised by section 22.
It reads:
“
(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
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 purposes, any railway and
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 environmental policy of the Republic.”
[43] A plain reading of the section
shows that section 22 confers certain entitlements or rights on a
licensee.  What entitles
one to those rights is the status of a
licensee.  Once a person is granted an electronic communications
network service licence,
she enjoys the rights listed in section 22.
The first of those rights is the right to enter any land in the
Republic.
Of course, the purpose of the entry must be the
exercise of the other rights in section 22 or rights contained in
other parts of
Chapter
4.
[44] The second right listed in section
22 is the right to construct and maintain an electronic
communications facility.  Once
the facility is constructed the
section confers a further right to alter or remove it from the land.
The section does not
subject the exercise of those rights to the
landowner’s consent.  Nor does it require the licensee to
give the landowner
any notice.  All that is needed for the
exercise of those rights is the licence.  Once the licence is
granted, the licensee
may enter any land, on any day, at any hour,
for the purposes of exercising its rights under the Act.
[45] On its face the language of section
22(1) does not reasonably bear a meaning that requires the
landowner’s consent before
the licensee may perform any of the
authorised functions.  Although section 22(2) requires that
those functions be carried
out in compliance with other applicable
laws, there is no other law that requires consent other than the
common law.  The
common law rule that one may enter property
with consent or permission of the property owner is in conflict with
section 22(1).
Therefore, reference to applicable law in
section 22(2) does not include the common law rule.  To subject
the operation of
section 22(1) to the common law rule would
emasculate it and seriously undermine the goal of achieving a rapid
rollout of electronic
communications facilities.
[46] Moreover, in the case of a conflict
between a statute and the common law, the statute takes precedence.
But section 94
of the Act goes further and stipulates that in the
case of conflict between the Act and any other law relevant to the
regulation
of electronic communications or broadcastings, the
provisions of the Act will prevail.  Therefore, it cannot be
proper to
regard the common law as introducing consent as a
requirement to the application of section 22(1).  The
interpretation of
section 22 advanced by the City must be rejected.
The landowner’s consent is not required before a licensee may
enter
any land on which it has chosen to build an electronic
communications facility.
[47] While the construction that section
22 permits entry into any property without consent may advance the
constitutional rights
to receive and impart information, it does not
promote the landowner’s property rights.  Consequently,
the section may
not pass constitutional muster.
Meaning of section 24
[48] Section 24 of the Act provides:
“
(1)
A 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.”
[49] This section authorises a licensee,
if it so chooses, to build and maintain an electronic communications
facility under any
public street, road or footpath.  The
facility must be housed in a pipe, tunnel or tube laid below the
surface of the street.
The licensee is entitled to alter or
remove the pipes once laid and in doing so may even “break or
open up any street, road
or footpath”.  In addition, a
licensee may alter the position of any pipe for the supply of water,
gas and electricity,
excluding “a sewer drain or main”.
The local authority within whose area the street falls must be given
written notice of 30 days before the tunnels are built or pipes are
laid.
[50] It is plain that the section
authorises licensees to interfere with the infrastructure of a local
authority in terms of which
water and electricity are supplied.
This is done by altering the position of pipes, albeit under the
supervision of the local
authority concerned.  In respect of
section 24, the City and Msunduzi did not ask that it be given an
interpretation similar
to the one they advanced with regard to
section 22.  They did not argue that section 24 be construed as
requiring consent
of a local authority before the licensee could
undertake the activities permitted by the section.
[51] The rejection of the City’s
construction of section 22 leads to a consideration of the
constitutional attack.  Msunduzi
did not advance any argument on
the constitutional validity of sections 22 and 24.
Invalidity of section 22
[52] Section 22 was impugned on the
ground that it was inconsistent with section 25(1) of the
Constitution.  The City
contended that section 22 permits
arbitrary deprivation of property.
[53] Link Africa and other licensees, as
well as the Minister countered this argument by submitting that as
part of the
state
, the City did not enjoy
any of the rights guaranteed by section 25(1) of the Constitution.
They argued that this section
protects private property rights.
Consequently the City as a non-bearer of those rights, so it was
contended, could not invoke
section 25(1) in impugning section 22 of
the Act.
[54] The City sought to meet the
argument by contending that it is a property owner and enjoys all the
rights flowing from ownership.
However, this misses the point.
The argument advanced by Link Africa and others is not disputing the
City’s capacity
to own property.  The nub of that argument
is that the City is not a bearer of the property rights guaranteed by
section 25(1).
As a result the City, acting in its own
interests alone, cannot claim that the impugned section violates its
section 25(1) rights.
To that extent there is merit in the
submission by the Minister and the licensees.
[55] The Bill of Rights does not confer
rights on any arm of the government.  On the contrary,
obligations are imposed on the
state to “respect, protect,
promote and fulfil the rights in the Bill of Rights”.
[33]
In fact the Constitution emphatically declares that the Bill of
Rights binds the state in all its forms and every organ of
state.
[34]
[56] However, the fact that the City
cannot claim that its rights under section 25(1) of the Constitution
were violated does not
mean that the challenge based on that section
should fail.  SMI Trading, the City’s co-litigant here, is
a private property
owner which enjoys the protection guaranteed by
section 25(1).  SMI Trading too averred that section 22 of the
Act is inconsistent
with section 25(1).
[57] The real issue is whether section
22 is consistent with section 25(1) of the Constitution.  We
follow a two-stage enquiry
in determining this issue.
[35]
First, we need to consider whether there is a limitation of the
rights in section 25(1).  If there is, we must determine
whether
the limitation is justified.  Put differently, we must decide
whether section 22 permits deprivation of property and
whether that
deprivation is justified.
Meaning of section 25(1)
of the Constitution
[58] Happily for us section 25(1) has
been interpreted by this Court in a number of cases.
[36]
In
Mkontwana
this Court held that section 25(1) guarantees
protection against deprivation which constitutes a substantial
interference or limitation
that goes beyond the normal restrictions
on property use or enjoyment found in an open and democratic
society.
[37]
Here, it cannot be gainsaid that section 22 of the Act allows
deprivation that amounts to a substantial interference with
the use
and enjoyment of property that goes beyond the normal restrictions.
The section authorises a licensee to build an
electronic
communications facility on any land without permission of the
landowner.  An electronic communications facility
is defined in
wide terms in the Act, ranging from wires, to masts, cable landing
stations and earth stations.  The size of
these masts and
stations is not limited.  That is probably why in
MTN
,
Mobile Telephone built a base station covering approximately 110
square metres.
[59] The interference is not limited to
the size of the land lost by the landowner.  The erection of
fences, the cutting down
of trees and removal of vegetation are some
of the factors that indicate that the deprivation is extensive.
As is the imposition
of obligations on the landowner to give written
notice to the licensee before exercising her rights on her own
property.
This includes rights like erecting a building.
In addition to these duties, the landowner is required to bear the
costs incurred
by the licensee in effecting a deviation or alteration
of the positioning of the electronic facility that was imposed on her
property.
All these factors illustrate the extent of the
limitation of the rights protected in section 25(1) of the
Constitution.
Is section 22 arbitrary?
[60] What remains for consideration is
whether the deprivation brought about by section 22 is arbitrary.
In
Reflect-All
, Nkabinde J reaffirmed the test for
arbitrariness in these words:
“
Deprivation
in itself is not sufficient for interference to fall foul of section
25(1) of the Constitution.  It must also be
arbitrary.
Ackermann J in [
FNB
above
n 36] concluded that a deprivation will be arbitrary if ‘the
‘law’ referred to in section 25(1) does not
provide
sufficient reason for the particular deprivation in question or is
procedurally unfair’.  It thus follows that
for the
applicants to ground a successful challenge to sections 10(1) and
10(3), they will have to show that the impugned provisions
are either
procedurally unfair, or that insufficient reason is proffered for the
deprivation in question, in other words it is
substantively
arbitrary.”
[38]
(Footnote omitted.)
[61] Since the nature of the deprivation
we are concerned with here is extensive and affects ownership of
land, for it to escape
arbitrariness, it is not sufficient to merely
establish a rational connection between what section 22 authorises
and the goal of
achieving rapid rollout of electronic communications
networks or facilities.  Compelling reasons must be advanced for
the
deprivation on the scale that section 22 and the related
provisions allow.  In
Reflect-All
, this Court said:
“
I
agree with the reasoning of the High Court to the extent that the
facts of this case require more than the presence of a rational

connection between the law in question and the ends sought to be
achieved.  In terms of the considerations identified in [
FNB
above n 36]
,
the present case deals with land upon
which section 10(3) imposes extensive restrictions.  Compelling
reasons will therefore
have to be advanced to save the provision from
unconstitutionality.”
[39]
[62] The Minister upon whom the
responsibility to administer the Act falls, has not placed any
information before this Court throwing
light on the reasons for the
extensive limitation of the property rights.
[40]
Nor are we told why the impugned provision was drafted in a manner
that unduly invades the landowner’s rights.
The scheme of
the relevant
Chapter
as shown earlier,
illustrates a manifest bias towards the protection of the licensee’s
interests at the expense of the landowner’s
rights.  Take
for example section 26 which authorises the licensee to erect a fence
without notice to the landowner.
The same provision requires
the landowner to give the licensee written notice of six weeks,
advising the licensee of the intention
to put a fence on her own
property.  Additional to this is the authority given to the
licensee to cut down trees and remove
vegetation without notice to
the landowner if the trees or vegetation interfere with the
electronic communications facility.
[63] The impugned provisions fail to
strike a fair balance between the general public interests in the
rapid rollout of the facilities
in question and the protection of
individual fundamental rights.  That failure lies at the heart
of the substantive arbitrariness
of section 22.
[64] Moreover, section 22 is also
procedurally arbitrary.  The section authorises the licensee to
enter private land and build
its electronic infrastructure without
notice and permission of the landowner.  The landowner’s
property rights are rendered
subservient to the licensee’s.
The section places the rights it creates for the licensee above the
constitutional rights
of the landowner without a procedurally fair
process.  In fact it does so without any process at all.
This is not in
line with our Constitution which does not rank any of
the rights it guarantees above other rights.
[41]
On the contrary, the Constitution seeks to ensure that rights in the
Bill of Rights reinforce one another so as to promote
human rights
generally.
[42]
Where two rights are in conflict, a balance must be found that
results in the protection of both rights.  What makes
matters
worse in this case is the fact that rights created by a statute are
placed higher than property rights guaranteed by the
Bill of Rights.
Does PAJA apply to
section 22?
[65] The Supreme Court of Appeal sought
to remedy the section’s procedural deficiency by introducing
the application of PAJA
to its operation.
[43]
PAJA is not suitable for the circumstances of section 22.  In
the first place, the section does not require an administrative

decision to be taken before the rights it confers are exercised.
Nor is there any provision in the Act which requires a decision
of
that kind to be taken.  This means that there is no legal basis
for a decision of that nature.
[66] Of course a licensee may take a
decision to exercise its rights under section 22.  But that is
not the type of decision
that triggers the application of PAJA.
For PAJA to apply, the decision must be of an administrative nature.
A decision
is administrative if it is taken in the exercise of public
power or in the performance of a public function.  In the
absence
of an empowering provision, there can be no public power or
public function.
[44]
[67] The fact that the function we are
concerned with here was previously performed by an organ of state
does not prove that we
are dealing with a public function.
There are many functions which were performed solely by the state in
the past but which
now are carried out by the state and commercial
entities.  For example, there are private hospitals licensed to
provide health
care for profit, and private schools authorised to
offer education for gain.  It can hardly be argued that these
private hospitals
and schools perform a public function, regardless
of the fact that the Constitution imposes an obligation on the state
to provide
health care and education.  As we see it, there are
two health care systems and two school systems in this country.
One is public and the other is private.
[45]
Both exist side by side.
[68] In a similar vein, it cannot be
argued that all radio stations in the country perform a public
function only because in the
past, radio and television services were
the exclusive preserve of the South African Broadcasting Corporation
(SABC).  The
SABC is a public broadcaster and an organ of
state.  Nor can it be argued that commercial companies that
provide a mobile
telephone service to the public like Mobile
Telephone, Vodacom and Cell C, perform a public function since this
service is also
offered by Telkom which is an organ of state.
However, in these proceedings, it is not necessary to express a firm
opinion
on whether these companies perform a public function or not.
[69] A commercial decision by Link
Africa to choose the City’s municipal area as the place where
it would like to build electronic
infrastructure for financial gain,
cannot pass as an administrative action.  This is so even if the
general public and business
entities would eventually benefit from
the infrastructure: PAJA does not apply to commercial decisions.
[70] A further difficulty in the
applicability of PAJA is that the licensee for whose benefit the
decision is taken is the decision-maker.
This is not compatible
with a procedurally fair administrative action guaranteed in section
33 of the Constitution.  This
is the section to which PAJA gives
effect.
[71] In our law, administrative justice
has always forbidden decision-makers from taking decisions in matters
where they have an
interest.  For decision-makers cannot be
impartial if they stand to gain from the very decision taken by
them.  In essence,
the presence of bias is excluded in the
process of administrative decision-making as it is in judicial
decisions.
[46]
But it is not actual bias only that renders an administrative
decision invalid; a reasonable suspicion of bias also vitiates
the
decision.
[72] In
Liebenberg
, Solomon J
proclaimed the principle against bias in these terms:
“
Every
person who undertakes to administer justice, whether he is a legal
official or is only for the occasion engaged in the work
of deciding
the rights of others, is disqualified if he has a bias which
interferes with his impartiality, or if there are circumstances

affecting him that might reasonably create a suspicion that he is not
impartial. . . .  The impartiality after which the Courts
strain
may often in practice be unrealised without detection, but the idea
cannot be abandoned without irreparable injury to the
standard
hitherto applied in the administration of justice.”
[47]
[73] Administrative action that is
tainted with bias is void and falls to be set aside on review.
The common law rule against
bias is part of the principles of natural
justice.
[48]
The other principle is the
audi
rule
[49]
which requires that a person to be affected by an administrative
decision must be afforded a fair hearing before the decision is

taken.  Both these principles have now been codified in PAJA as
grounds of review.  Section 6(2) of PAJA permits a court
to
review and set aside administrative action that is procedurally
unfair or if the decision-maker who undertook it was biased
or was
reasonably suspected of bias.  The rule against bias is
underpinned by the principle that administrative justice must
not
only be done but must also be seen to be done.  The purpose of
the rule is to establish and maintain public confidence
in
administrative justice.  Therefore, section 22 of the Act cannot
be read as authorising administrative action that is invalid
under
PAJA, owing to non compliance with the requirements of PAJA.
[74] In the context of section 22, a
decision by a licensee, that has a commercial interest in where the
infrastructure is to be
constructed, would certainly give rise to a
reasonable perception of bias on the part of the decision-maker.
Such decision
would be inconsistent with the right to administrative
justice promised by section 33 of the Constitution and PAJA.
Section
6(2)(a) of PAJA declares that a reasonable suspicion of bias
on the part of the decision-maker constitutes a ground for
review.
[50]
[75] The legal difficulties identified
in this judgment as standing in the way of applying PAJA to the
section 22 procedures were
not considered by the Supreme  Court
of Appeal in
MTN
and
Msunduzi
.  That Court merely
proceeded from the premise that any decision taken in terms of
section 22 constitutes administrative action,
without any analysis of
whether the section confers rights or public power.  Not all
decisions taken in terms of a statute
amount to administrative
action.  Put differently, it is not the exercise of every power
conferred by statute that leads to
administrative action.  But
in our view, section 22 does not even confer power.  Instead, it
creates statutory rights
enjoyed by licensees.
[76] These licensees bear no
administrative obligation to develop electronic communications
facilities.  They do so purely
as a matter of commercial
business.  No member of the public may demand that the licensees
must build infrastructure, even
on that member’s own property.
The decision to build infrastructure and where it must be constructed
is that of the
licensee.  That decision is informed by the
licensee’s internal commercial interests and nothing else.
Section
22 leaves it to the whims of each licensee to determine where
it wishes to build the electronic communications infrastructure.
Justification
[77] As observed earlier, there was no
information furnished to defend section 22 against the constitutional
attack.  Apart
from the purpose of
Chapter
4, no reasons were advanced for justifying the limitation caused by
the section.  Moreover, we have already held that the

deprivation authorised by the section is arbitrary.  It is
unlikely that an arbitrary deprivation may still be justified under

section 36 of the Constitution.
[51]
This is because both the arbitrariness and justification enquiries
involve the same analysis and consideration of similar
factors.
Review
[78] The City’s review claim
depended on the construction that said section 22 authorised a
licensee to make an administrative
decision.  Since we hold in
this judgment that the section does not empower administrative
action, a review claim does not
arise.
National and local
spheres of government
[79] During the hearing a debate
developed between this Court and counsel for the parties on whether
sections 22 and 24 of the Act
were consonant with sections 151, 155
and 156 of the Constitution.  In these sections, the
Constitution sets out the powers
and rights of municipalities.
In terms of section 156(1) read with Parts B of Schedules 4 and 5,
municipalities alone exercise
powers over beaches and amusement
facilities, cemeteries, local sports facilities, local amenities,
markets, municipal parks and
recreation, municipal roads, pounds,
public places, traffic and parking, storm water, management systems
and sanitation services
including sewage disposal systems.
[52]
Section 151(4) guarantees to municipalities the exclusive rights to
exercise those powers without interference by the other
spheres of
government.
[53]
Notably, section 155(7) imposes an obligation on the national
government to legislate on matters falling within the exclusive

domain of municipalities for the effective performance by
municipalities themselves of functions pertaining to matters listed
above.
[80] While it is accepted by all parties
that the Act does not regulate a matter allocated to the local sphere
of government, it
is apparent from the language of both sections 22
and 24 of the Act that licensees are empowered to enter all public
spaces, controlled
by municipalities and build their electronic
facilities, with municipalities having no say in the matter.
Although section
24 requires that written notice be given, the
section authorises a licensee to “break or open any street,
road or footpath”
to alter or remove the licensee’s
infrastructure.  The section does not require the licensee to
repair the damage once
the removal is done.  Instead, it obliges
the licensee to pay reasonable expenses incurred by the municipality
in connection
with the removal.
[81] If national government is
prohibited from passing legislation that authorises it to impede or
interfere with the right of municipalities
to exercise public power
or perform their functions,
[54]
equally it must be forbidden from passing legislation that authorises
commercial entities to undertake actions that have a potential
to
impede municipalities in the performance of their functions.
However, we think the point may not be the basis of invalidating
the
attacked provisions because it was not pleaded and was not fully
ventilated at the hearing.
Divergence
[82] We have read the judgment prepared
by our colleagues, Cameron J and Froneman J (majority judgment).
We differ from the
majority judgment on five points.  These are:
the distinction between the interpretation of a statute and its
application;
the meaning of
civiliter modo
in the context of
the common law on servitudes; the approach to adjudicating a
constitutional challenge based on a right in the
Bill of Rights;
whether the Expropriation Act 63 of 1975 (Expropriation Act) applies
to this case and the issue of deciding a case
on a point not raised
or argued by the parties.  We deal with each of these matters in
turn.
Distinction between
application and interpretation
[83] In our view the majority judgment
conflates the interpretation of section 22 with its application.
This section is divided
into two parts, namely section 22(1) and
22(2).  Section 22(1) is further broken down into parts (a), (b)
and (c).  It
sets out the rights conferred on a licensee and
starts by stating that the licensee may enter any land in the
Republic for purposes
of constructing and maintaining an electronic
communications network or facility.  Section 22(1)(c) says that
a licensee may
alter or remove its network or facility that has been
constructed.  This is what section 22(1) means.  It is not
disputed
that the language of the section does not require the
licensee to obtain consent of the landowner before exercising the
rights
it confers.  Nor does its language require the licensee
to give notice for consulting the landowner.
[84] On the other hand, section 22(2)
imposes a condition on how the rights conferred by section 22(1)
should be exercised.
It stipulates that a licensee, in
exercising the rights in subsection (1), must pay due regard to
applicable law and the environmental
policy of the Republic.
Section 22(2) does not tell us what meaning we may attach to section
22(1).  Instead, it tells
us how section 22(1) must be applied.
Section 22(2) has been construed to mean that a licensee is required
to comply with
applicable law whenever it exercises the rights in
section 22(1).  In determining whether section 22(2) was indeed
followed,
one has to identify the applicable law and examine if there
was compliance with it.  We emphasise that section 22(2) does
not define the meaning of section 22(1).  In our law,
interpretation and application of a statute are distinct
concepts.
[55]
Consequently, it is incorrect to collapse them into one and contend
that a provision that regulates the application of a
statute also
defines a meaning to be assigned to the applied provision.
[85] Therefore, even assuming that
section 22(1) creates a servitude, the label given to the rights in
the section does not help
in its interpretation.  Instead, when
a licensee exercises those rights, it would be required to comply
with the common law
on servitudes.  As a result we stress that
the limitation created by section 22(1) on property rights guaranteed
by section
25 of the Constitution cannot be removed or justified by
the common law on servitudes.
Meaning of civiliter
modo
[86] Assuming that we are concerned with
a servitude, and that the common law on servitudes is the law
applicable to the exercise
of the rights conferred by section 22(1),
the question that arises is what are the common law principles a
licensee must comply
with.  The majority judgment states that
the common law on servitudes introduces the servitude requirement
that the licensee
must give notice and consult with the landowner.
The landowner is also entitled to compensation in terms of the common
law.
If the consultation between the licensee and the landowner
fails to yield an agreement, the dispute must be judicially
resolved.
[56]
[87] We disagree.  The common law
on servitudes merely requires that a servitude be exercised
civiliter
modo
.  In
Motswagae,
Yacoob J explained what
civiliter modo
means.  He said:
“
The
municipality’s defence is that it has a servitudinal right to
enter property to perform work related to the provision
of public
services.  The argument that a municipality can lawfully enter
upon property on which a home is situated to carry
out its duty,
absent urgency or other exceptional circumstances, in the face of the
objection of the home occupier without a court
order is just wrong.
For one thing, the common law requires that
a
servitude be exercised civiliter modo, that is respectfully and with
due caution
.  Patently this would
not include non-consensual bulldozing.  Indeed, it would be no
more than the sanctioning of self-help
and the encouragement of the
municipality to take the law into its own hands.  Our society is
based on the rule of law and
the rule of law does not authorise
self-help.  There is little difference between a municipality
forcibly entering upon a
property to do its work and a person
forcibly extracting a debt from another.  Indeed, the
municipality as an organ of state
has the duty to protect its
citizens in their homes rather than to invade their homes.”
[57]
(Emphasis added and footnotes omitted.)
[88] What emerges from the statement in
Motswagae
is that this Court held that it was wrong for a
municipality to enter a person’s home, in the face of an
objection from the
homeowner.  This Court rejected the
contention that the municipality’s servitudinal rights entitled
it to enter the
home in question without permission from the
homeowner.  The Court held that the common law required the
municipality to exercise
its servitude
civiliter modo
, that
is, “respectfully and with due caution”.  It
concluded that
civiliter modo
does not include non-consensual
action by the holder of a servitude.
[89] We hold that
civiliter modo
does not incorporate notice for consultation and compensation.
Approach to adjudication
[90] From quite early in its operation,
this Court adopted a two-stage approach in deciding a constitutional
challenge based on
a right in the Bill of Rights.
[58]
It is now trite that where, as here, the validity of a statutory
provision is challenged on the basis that the impugned provision

violates a right in the Bill of Rights, the Court determines first
whether properly interpreted, the impugned legislation limits
a right
in the Bill of Rights.  In this matter the complaint
is that sections 22 and 24 of the Act limit property
rights
guaranteed by section 25(1) of the Constitution.  Therefore,
when applying the correct approach, we must first determine
whether
the impugned sections limit the relevant constitutional rights.
[91] The majority states that section 22
confers “wide powers on licensees and clearly limit
s
property rights”.  We also find that a limitation is
established.  This finding leads us to the second leg of the

enquiry, namely, a justification analysis.  This is where we
part ways with the majority judgment.  Instead of embarking
on a
justification examination, the majority finds that the limitation is
justified by section 22(2) which requires due regard
to the
applicable law when a licensee exercises the rights in section
22(1).
[59]
This, in our view departs from the established jurisprudence of this
Court.  In section 36, the Constitution proclaims
that rights in
the Bill of Rights may only be limited by a law of general
application that meets the requirements of that section.
One of
those requirements is to determine whether the limitation is
reasonable and justifiable.  Therefore, where a
limitation is
established, the Court is obliged to do the justification analysis.
Whether the
Expropriation Act applies
[92] The majority also grounds the
landowner’s right to compensation, in the Expropriation
Act.
[60]
We disagree.  Section 22(1) does not authorise expropriation of
land at all.  On the contrary, this section permits
a licensee
to use another person’s land to construct a communications
network or facility.  It is clear from section
3 of the
Expropriation Act that this Act is incompatible with section
22(1).
[61]
Section 3 permits the Minister of Public Works to expropriate land on
behalf of certain juristic persons or entities.
While accepting
that the licensees involved in this case are corporate entities,
section 3 does not authorise them to expropriate
land.  In
contrast, the section requires juristic persons to apply to the
Minister to expropriate on their behalf.  Section
22(1) does not
mandate the Minister of Public Works to do anything, let alone
expropriate for licensees.
[93] Compensation is not payable for
deprivation but is paid for expropriation.  This comes directly
from section 25(2) of
the Constitution.  That section permits
expropriation under certain conditions.
[62]
In
Agri SA
, Mogoeng CJ drew a line between deprivation and
expropriation.  He said:
“
Sebenza
was deprived of components of its mineral rights in that the MPRDA
brought about a substantial interference and limitation
that went
beyond the normal restrictions on the use or enjoyment of its
property found in an open and democratic society.
Although
expropriation is a species of deprivation, there are additional
requirements that set expropriation apart from mere deprivation.

They are (i) compulsory acquisition of rights in property
by the state, (ii) for a public purpose or in the public interest,

and (iii) subject to compensation.”
[63]
(Footnote omitted.)
[94] Deprivation authorised by section
22(1) entails only the use of another person’s land for
constructing and maintaining
an electronic communications facility or
network.  The licensee does not acquire ownership of the land
concerned.  The
landowner retains full ownership, even though
the landowner’s enjoyment is limited by the exercise of the
section 22(1) rights.
This constitutes nothing more than a
diminished enjoyment of the property.  Whereas in the case of
expropriation there is
a complete loss of the expropriated right,
hence the need for compensation.
[95] On the majority’s approach in
this matter, SMI Trading was entitled to compensation for the loss of
approximately 110
square metres on which Mobile Telephone had
constructed its base station.  None of the parties raised the
question of compensation
for what is authorised by section 22(1).
Constitutional issues
raised mero motu
[96] The issues of servitudes and the
question of the application of the Expropriation Act to this matter
were not raised by any
of the parties both in written submissions and
at the oral hearing.  Deciding the case on the basis of points
in respect of
which the parties were not heard would violate the
audi
principle.  This principle is the bedrock of our system of
justice.  A decision reached in non compliance with the
audi
principle breaches the affected parties’ right to a
fair hearing protected by section 34 of the Constitution.
[64]
[97] The majority contends that it is
entitled to base the decision on these points mentioned for the first
time in the judgment
because from the start the interpretation of
sections 22 and 24 were at the heart of this litigation.
[65]
For this proposition reliance is placed on
CUSA
[66]
and
Director of Public Prosecutions,
[67]
both of which are decisions of this Court.  While it is apparent
from those decisions that a court may raise a constitutional
issue of
its own accord, there are requirements which must be met.  One
of them is that the parties must be heard on the point
raised by the
Court.  This accords with the
audi
principle.
[98] In
Director of Public
Prosecutions
this Court tabulated these requirements:
“
It
must be stressed that the constitutional issue sought to be raised
must arise on the facts of the case before the court.
In
addition, the parties must be afforded an adequate opportunity to
deal with the issue.
A court may
not ordinarily raise and decide a constitutional issue, in abstract,
which does not arise on the facts of the
case in which the issue is
sought to be raised.  A court may therefore, of its own accord,
raise and decide a constitutional
issue where (a) the constitutional
question arises on the facts; and (b) a decision on the
constitutional question is necessary
for a proper determination of
the case before it; or it is in the interests of justice to do
so.”
[68]
(Emphasis added.)
[99] Both
CUSA
and
Director of
Public Prosecutions
are not authority for the proposition that a
court may in its judgment rely on points which were not raised with
the parties and
to do so without affording them an opportunity to
deal with those points.  For these reasons we would have
declared the impugned
provisions invalid.
CAMERON J and
FRONEMAN J (Khampepe J, Madlanga J, Molemela AJ and Theron AJ
concurring):
Introduction
[100] We have had the benefit of reading
the minority judgment of Jafta J and Tshiqi AJ.  We agree
that leave to appeal
and the applications for intervention must be
granted.  But we disagree that sections 22 and 24 of the Act
[69]
are constitutionally invalid.  Less even is the whole of Chapter
4 invalid.  The minority judgment finds that the statute
permits
an arbitrary deprivation of property.  That is to us incorrect.
Our jurisprudence says that courts must adopt
a reasonable
interpretation of legislation that avoids its invalidity.  That
jurisprudence is based, in part, on respect for
the role of the
Legislature.  It must prevail here.  The statute at issue
is not invalid.  It is a beneficial intervention
by the
Legislature that deserves to be given the validity and power
Parliament designed for it. And that can be done without any
strain
to our existing law.
[101] The challenged statutory
provisions are modelled on statutes that go back to 1911.  For
over a century, provisions of
this kind have conferred necessary
powers on agents installing communications and other networks for the
public good.
[70]
And they do so in conformity with ample protections our law affords.
[102] Both private law and public law
recognise that the law may grant to one person a right in the
property of another, entitling
the former to use and enjoy that
person’s property or to prevent the latter from exercising
certain entitlements flowing
from the usual rights of ownership.
But where the law imposes this obligation on landowners, it requires
fair procedures
and equitable compensation in appropriate
circumstances.  This finds expression in the principles
applicable to a right of
way of necessity (
via necessitatis
)
in private property law.
[71]
In public law, it is not uncommon that legislation may provide for
compensation to be paid when exercising the kind of rights
at issue
here.
[72]
[103] The explanation as to why there is
no explicit mention of this in section 22(1) is straightforward.
The existing private
law protection is covered by the reference to
“applicable law” in section 22(2).  The public law
protection of
compensation for expropriation is covered by the
relevant provisions of the Expropriation Act relating to the need for
expropriation
by juristic persons other than the state.
[73]
The absence of an explicit reference to it in section 22 is explained
by the fact that electronic communication network services
are now
provided by private persons and not only by the state, as was the
case previously.
[104] Servitudes conferred by statute
have conveniently, and without any doctrinal problems, been referred
to for many decades as
public servitudes.  Their existence is
reflected in virtually every title deed in South Africa.  Almost
every property
in urban areas has servitudes registered over it for
sewage, water reticulation, electricity supply and the provision of
telephone
services.  These servitudes are routinely registered
as part of the process of opening a township register.  The same

is the case with rural properties.  These may include road and
rail reserves, power line servitudes, rights of way, rights
to convey
water and various mining servitudes.
[105] The minority judgment disregards
this nuanced position in our existing law.  And it disregards
the plain legislative
history that precedes the provisions now sought
to be invalidated.  Its effect is to require Parliament to
re-invent, in new
legislation, procedural and substantive safeguards
that already exist in our law.
[106] It proceeds from an outdated,
over-rigid and absolute notion of ownership.  That conception is
alien to the holding of
property under the common law, the
Constitution and other applicable law.  A more supple conception
of ownership rights –
one this Court has repeatedly embraced –
shows a clear and inviting path to upholding the statute’s
validity.
[74]
That will enable an important piece of legislation to do the work
that Parliament, in the exercise of its rightful powers,
designed for
it.
[107] At the outset, we note that no
party before this Court seeks to challenge the whole of Chapter 4.
The pleadings are
careful to impugn only sections 22 and 24 of the
Act.  We have not heard argument challenging the constitutional
validity
of all 11 provisions of Chapter 4.
[75]
This makes it quite wrong to pronounce on the Chapter’s
cumulative validity.  Our analysis and findings are confined,
as
were the parties’ arguments, to the two contested provisions.
[108] We differ fundamentally from the
suggestion that property ownership under the common law affords the
owner an absolute bar
to entry without consent.  The proposition
runs counter to the jurisprudence of this Court and to the common law
of ownership
before it.
[109] This Court has recognised that
property as an individual right is not absolute.  It is subject
to societal imperatives.
[76]
Indeed, pre-constitutional property concepts recognised that property
should also serve the public good.
[77]
This is a widely recognised general principle of the common law.
Happily for the Act’s validity, it finds specific
expression in
the common law of servitudes.  Servitudes are rights enjoyed
over the property of another.  They may be
granted by
agreement.  Or they may be imposed by law.  It is this
category, where servitudes are granted by force of
law,
[78]
and not by consent between the parties, that rebuts the challenge to
the validity of the Act’s provisions.
[110] To pose the question whether
consent is a general requirement for entry to property does not help
in assessing the validity
of these provisions.  The real
question is this: what is the common law position if the owner of a
servient property, one
over which a servitude is granted, is
confronted by a servitude created by law?  The common law
provides flexible and equitable
principles that protect the servient
owner.  So the common law does not bump its head against (and is
therefore not “trumped”
by) the Act.  The common law
principles regarding servitudes show illuminatingly that section 22
of the Act inflicts no arbitrary
deprivation of property.  It is
good and beneficial statute law.
[111] While section 24 does not contain
the express injunction found in section 22(2) to the effect that
other applicable law (i.e.
the common law on servitudes) applies, it
too must be interpreted in a manner that is least invasive of
fundamental rights if it
is reasonably possible to do so.  And
that is indeed so.  Section 24 contains express procedural and
substantive safeguards
including requirements of notice and
compensation.  The result is that deprivation of property under
section 24 will
not be arbitrary.
[112] The Constitution’s broad
standing provisions do not allow the City to assert section 25(1)
property rights.
[79]
Indeed the City acknowledges that, in the ordinary course, it is not
itself a bearer of those rights.  While the City
may enjoy
public interest standing under section 38(d) of the Constitution,
[80]
it has never suggested in its pleadings or argument that its
challenge was prosecuted to defend the property rights and interests

of the members of the public within its boundaries.  It was
acting solely in its corporate capacity as a government entity.

This elides the need to assess the City’s purported rights
under section 25.  But the rights of private landowners,
such as
the sixth intervener, SMI Trading, remain at issue.
[113] Finally, the High Court
(Avvakoumides AJ) aptly noted that our country faces serious problems
because of its grossly deficient
broadband capacity.  These in
turn stifle intellectual growth and inquiry, and compromise economic
development and efficiency.
[81]
The statute’s legislative scheme resonates with the Minister’s
call for greater broadband capacity.  It
aims meaningfully and
practically to remedy these problems in a way that promotes economic
growth.  It does so in a way that
is fair, reasonable and
justifiable.  We find nothing arbitrary in it.
Statutory interpretation
[114] Section 39(2) tells courts they
must interpret legislation in a manner that promotes the spirit,
purport and objects of the
Bill of Rights.  That is our first
duty in interpreting legislation.  All legislation must be
enacted, and all public
power must be exercised, in accordance with
the Bill of Rights.  The Bill of Rights applies to all law.
It is pivotal
to the interpretation of all legislation and to the
development of customary law and the common law.  It bears
directly on
disputes that are subject to legislation and other laws
connected with constitutional rights.
[115] It is by now commonplace in our
constitutional jurisprudence that all statutes must be interpreted
through the prism of the
Bill of Rights.
[82]
Approached on this footing, the general rule is that a statute must
be given its ordinary grammatical meaning, unless to
do so would
result in absurdity or create discord with the Constitution.
And, most importantly, in following these interpretive
prescripts,
where it is reasonably possible, legislation must be given a meaning
that preserves its constitutional validity.
These principles
were clearly set out in
Cool Ideas
:
“
There
are three important interrelated riders to this general principle,
namely:
(a)
that statutory provisions should always be interpreted purposively;
(b)
the relevant statutory provision must be properly contextualised; and
(c)
all statutes must be construed consistently with the Constitution,
that is, where
reasonably possible, legislative provisions ought to
be interpreted to preserve their constitutional validity. This
proviso to
the general principle is closely related to the purposive
approach referred to in (a).”
[83]
(Footnotes omitted.)
[116] This is what this Court has always
understood section 39(2) to demand: that judges read legislation,
where reasonably possible,
in ways that give effect to the
Constitution’s fundamental values.  Consistently with
this, when the constitutionality
of legislation is in issue, judges
“are under a duty to examine the objects and purport of an Act
and to read the provisions
of the legislation, so far as is possible,
in conformity with the Constitution”.
[84]
[117] This has a plain practical
consequence.  When this Court interprets legislation, it must
avoid conflicts with the Constitution
where reasonably possible.
We must give preference to interpretations that fall within
constitutional bounds.  Our only
constraint is the lawyer’s
daily tool: language.  The ordinary, elementary, meaning of
words must not be strained.
[85]
[118] So that is what we must do here:
we must find, if reasonably possible, an interpretive path that
preserves the Act’s
constitutional validity.
[119] The minority judgment’s
suggestion that deciding the matter on this basis violates the
audi
principle overlooks the fact that the interpretation of sections
22 and 24 have, from the start, been at the heart of this
litigation.
[86]
The core issue all along has been whether the provisions are capable
of an interpretation that renders them constitutionally
compliant.
That this Court undertakes its constitutional mandate to find a
reasonable interpretative path that preserves
the Act’s
constitutional validity by using additional interpretative
considerations,
[87]
especially when it reaches the same conclusion as the courts below,
cannot raise an
audi
point.
The
Act
[120] The primary object of the Act is
to regulate electronic communications in the public interest.
Section 2 sets out its
ancillary objects.  These include open,
fair and non-discriminatory access to broadcasting services and
communication networks
so as to encourage investment and innovation
in the communications sector.
[88]
The purposes of the Act encourage the realisation of fundamental
rights, in particular the right to equality, education,
access to
information and freedom of trade, occupation and profession.
[121] Fast and reliable electronic
communication services have the potential to improve the quality of
life of all people in South
Africa.  They do so through
increasing the availability of texts, audio and other media at
schools, universities and colleges,
and boosting business and
employment opportunities.  Anyone who has seen a teenager using
a mobile telephone or other electronic
devices to access the internet
for homework, research or inquiry will understand the statute’s
objectives.
[122] Reliable electronic communications
go beyond just benefiting the commercial interests 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.
[123] The spirit and purport of the Bill
of Rights command that the Act must be interpreted to promote access
to fundamental rights
rather than to hinder them.  That is our
clear duty here.
[124] Section 22 provides for 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 purposes,
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.”
[125] This language is broad.  It
provides access to any land in order to construct electronic
communications facilities.
This is intended to serve a
legitimate and important legislative purpose which is essential for
the unhindered universal roll out
of electronic communications
services.  On the face of it, the provision appears to confer
wide powers on licensees and clearly
limits property rights.
But the exercise of the power is not unhindered.  The provision
makes sure of this.  That
power is constrained by the plain,
ordinary grammatical meaning of the provision itself, which demands
that regard must be had
“to applicable law and the
environmental policy of the Republic.”
[126] “Applicable law” is
unlimited.  Nothing in the statute limits it.  So it must
include the common law
and Constitution.
[89]
How can it not?  In
Msunduzi
, the Supreme Court of Appeal
held that “due regard” must be taken to mean “comply
with”, provided that
compliance with applicable law cannot be
taken to mean that the right given to network licensees under section
22(1) is defeated
or eviscerated.
[90]
[127] The important point is this.
The grant of the right under section 22(1) to a network licensee does
not determine how
that licensee may exercise it.  For that, one
has to go to section 22(2).  And this explicitly requires that
“[
i
]
n
taking any action
in terms of
subsection (1) due regard must be had to applicable law”.
[91]
Here the analogous principles and rules of the common law of
servitudes point the way to the statute’s validity.
[128] Section 24, entitled “Pipes
under streets”, provides:
“
(1)
A 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.”
[129] Section 24 differs from section 22
in that it does not contain the express injunction that “due
regard must be had to
applicable law and the environmental policy of
the Republic”.
[92]
However, the provision harmonises the exercise of licensees’
powers and the protection of local authorities or ownership

interests, by incorporating express procedural and substantive
safeguards.  First, the licensee is required to provide 30
days’
prior written notice of its intention to construct, maintain or alter
electronic communications facilities.
[93]
Second, the notice must specify the manner in which the
infrastructure is to be constructed and maintained (presumably the

notice must also specify alterations to be undertaken in accordance
with subsections (1)(b) and (c)).
[94]
Third, it may provide for compensation for “all reasonable
expenses incurred or any supervision of work relating to
such
alteration”.
[95]
[130] The provision thus clearly
contemplates a measure of agreement between licensee and landowner.
This is necessary to
determine “reasonable expenses incurred”.
And it demands sufficient deference to the local authority or owner,

because they are entitled to “supervise” the licensee’s
work on their property.
[96]
[131] So it is true that sections 22 and
24 of the Act permit a licensee to exercise powers without prior
consent.  But their
precursors’ substantially similar
provisions, are of long-standing origin, dating back to 1911.
Their purpose then
and now is equally compelling.  It is to
bring the modern world closer and more productively to us all through
the medium
of communication.  In 1911, the need to transmit
telegraphs was compelling to move toward an interconnected society.

Now, it is mobile phones and the internet.  But this is not
achieved by disregarding property rights.  As we explain
below,
in undertaking the means necessary to provide modern communication
infrastructure, ample procedural and substantive safeguards
provide
protection to property rights.  And they define, albeit broadly,
the nature and scope of a licensee’s power.
Common
law on servitudes
[132] The minority judgment foregrounds
the common law requirement that intrusions on private property
require the owner’s
consent.  It adopts a rigid and
constricting approach to it.  This is the premise that leads the
judgment to finding
the Act invalid.  That, in our view, is in
conflict with the interpretive canons this Court has developed and
adopted over
the last two decades.  It also does Parliament an
injustice: for a statute that can be made to do its important work is
instead
consigned to invalidity.  We find that approach in
conflict with these basic principles, and unnecessary.
[133] The common law rule is generally
expressed in the notion that one may enter property only with consent
of the property owner.
Stated in this barefaced way, this may
seem to run counter to section 22(1) of the Act.  But that is
only the general rule.
It is where we start.  Not where we
stop.  The common law is far more nuanced.  This the common
law on servitudes
shows.  It showers the question of statutory
construction before us with flexible and equitable principles that
protect the
servient owner.
[134] It may well be that a statute
prevails over the common law when the two are in irresoluble
conflict.  That is not so
here.  Longstanding authority
points to a subtler path rather than brute primacy.  For well
over a century, courts have
insisted
that
common law and statute must as far as reasonably possible be read in
harmony.
[97]
And we show below that the common law on servitudes can reasonably be
read in harmony with section 22(1).  There is
no question of
conflicting statutory provisions “trumping” the common
law.  So the common law is “applicable
law” –
and “due regard” must be had to it.  These lessons
lie deep in our legal history, and the Constitution
enjoins us to
apply them to the legislation of our modern democracy.
[135] In
Willoughby’s,
Innes J regarded that a servitude as a real right carved out of the
full dominium of the owner and transferred to another.
[98]
In
LAWSA
a servitude is defined as—
“
a
limited real right that imposes a burden on movable or immovable
property by restricting the rights, powers or liberties of its
owner
in favour of either another person (in the case of a personal
servitude) or the owner of another immovable property (in the
case of
a praedial servitude).  Put differently, it is a right of one
person in the property of another entitling the former
to use and
enjoy that person’s property or to prevent the latter from
exercising certain entitlements flowing from the normal
rights of
ownership.”
[99]
[136] Roman-Dutch law infused early
stages of the common law on servitudes.  It limited the types of
servitudal rights to a
fairly strictly confined number.
[100]
Traditional common law rooted in the Roman-Dutch tradition
distinguished between two types of servitudes – personal
and
praedial.
[101]
A praedial servitude is one where there are at least two pieces of
land implicated.  The servitude confers benefits
on one piece of
land, the dominant tenement, while imposing corresponding burdens on
the other, the servient tenement.
[102]
A praedial servitude vests in the owner of the dominant land.
But neither its benefit nor its burden can be detached
from the
land.  These are passed from one landowner to the next.
[103]
[137] By contrast, a personal servitude
is a real right that attaches to the burdened land, but is also
always connected to an individual.
He or she holds the right to
use and enjoy another’s property.  That right is
non-transferable: it cannot be passed
on to another.  However,
personal servitudes are always enforceable against the owner of the
property burdened by it –
even when that owner changes.
[138] In modern South African law, types
of rights and restrictions found in traditional servitudes have been
relaxed.  This
relaxation has been so extensive “that
their number is ‘practically unlimited’ although certain
general requirements
have to be fulfilled”.
[104]
To determine whether a right in property is a servitude is often a
matter of judicial policy.  It depends in part on
whether the
nature of the right is capable of being recognised as a real
right:
[105]
“
The
essence of a servitude is therefore, that it confers ‘a real
right [to use and enjoyment of the property of another]’,
and
it is this direct relationship between the holder of the servitude
and the property to which it relates that distinguishes
it from a
mere contractual right against the owner of the property.”
[106]
(Footnotes omitted.)
[139] The crucial point is
this: the common law on servitudes illustrates that property
rights have dimension, colour and complexity far beyond any barefaced

general proposition about ownership.  Servitudes limit the
rights of ownership and place certain burdens on property by
affording
power of use and enjoyment to another.  That has been
the case for thousands of years, for our law of servitudes, both
consensual
and non-consensual, is derived from the Roman law.
[140] What section 22 does is wholly
conformable with this long history.  In effect, the statute
creates what used to be called
“public servitudes”.
[107]
The term is in some cases a misnomer, because the public can hardly
be said to be direct right-holders of a servitude.
[108]
That objection does not apply in the case of the public servitudes
sections 22 and 24 create.  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.
[109]
The rights vest in the network licensees upon grant of the
licence.
[110]
[141] What of the fact that the network
licensees are not holders of dominant property in relation to the
servient property?
Does this mean the servitude cannot be a
praedial servitude?  Not necessarily.  A fitting analogy is
personal servitudes.
The licence rights the statute grants are
more in the nature of personal servitudes.  This fits well
within the scheme of
our common law and the way statutes are
interpreted within it.  As far back as
Willoughby’s
,
the Court recognised that “there are many instances in which
South African courts have recognised as personal servitudes
rights
which, had they been attached to the ownership of other land, would
have constituted praedial servitudes”.
[111]
[142] Nonetheless, the rights section 22
grants are similar to a general servitude.  These allow the
dominant owner to select
the essential incidental rights of the
necessary premises and to take access to them as needed for the
exercise of the servitude.
But the right is not unrestricted.
The dominant servitude holder cannot just barge in.  A large
part of the argument
on behalf of the City of Tshwane and Msunduzi
was premised on the outrageous notion of the licensee just barging
in, brazenly disregarding
municipal protections and duties and
works.  That can never be.  It is alien to our law’s
conception of rights
over another’s property.  As stated
in
Hollman
, exercise of a servitude is subject to the
important condition that incidental rights must be “exercised
civiliter
”.
[112]
[143] This Court has embraced the
principle that rights over the property of another must be exercised
civiliter modo
.  In
Motswagae
, Yacoob J on behalf
of the Court stated that “the common law requires that a
servitude be exercised
civiliter modo
”.
[113]
The Court translated the Latin into plainer language.  It said
this meant that a servitude must be exercised “respectfully
and
with due caution”.
[114]
[144] What does it mean to exercise a
right to enter another’s property respectfully and with due
caution?  Our existing
law tells us.  It is bound up with
the facts.  And the common law is amply flexible and adaptable
enough to cater for
the novel needs the statute creates.
Electronic communications networks may be constructed over the land
of others only with
respect and due caution.  This is the path
away from consigning important statutory provisions, serving a vital
public function,
to oblivion.
[145] In relation to a servitude of way
(right of way) over a defined route, the existing common law rule was
that it could be altered
only by mutual consent.
[115]
In
Linvestment
, the Supreme Court of Appeal pointed out that
developing the common law was necessary in “mitigating the
burden of servitude”.
[116]
That Court’s approach is vividly apposite:
“
In
addition this court has always possessed an inherent power to develop
the common law.  The fullest discussion of which I
am aware is
to be found in Hahlo and Kahn, ‘The Second Life of the
Roman-Dutch Law’.  The power is confirmed in
section 173
of the Constitution ‘taking into account the interests of
justice’.  Thus, without abandoning our
legal heritage,
the courts can and should examine how developed legal systems cope
with common problems.  By appropriate application
of the
knowledge thus derived, a modification of our existing law may better
serve the interests of justice when the existing law
is uncertain or
does not adequately serve modern demands on it.  The present
appeal, in my view, is just such a case.”
[117]
(Footnote and references
omitted.)
[146] The Court further held that:
“
In
line with the extensive international trend of legal development in
this respect, I therefore propose that, in circumstances
falling
within the problem posed by the stated case, the law be developed to
ensure that injustice does not result.”
[118]
The Court in
Linvestment
then sought to make provision in its order for a requirement that it
was only if the existing use of the servient property would

materially inconvenience the owner that a change to the servitude
could be made, and if the change was permitted it should not
cause
prejudice to the owner of the dominant property.
[119]
[147] The common law way of necessity
(
via necessitatis
) provides another instance of how rights
over the property of another must be exercised in a flexible and fair
manner.  If
no agreement can be reached between the owners of a
servient and dominant property on the grant or exercise of a way of
necessity,
it must be obtained by a court order.
[120]
Without judicial resolution of the dispute, occupation of the
servient property may be unlawful.
[148] A distinction was originally made
between a full way of necessity (
jus viae plenum
) and a
precarious one (
via precario
).  The former allowed
continuous use.  The latter allowed only occasional use, when
specific necessity required the use
of the road.  Compensation
was payable in the case of the former, in the latter, not.
[121]
But in
Van Rensburg
, Jansen JA doubted whether this
distinction could still hold in modern times.
[122]
He implied that compensation will always be payable.
[149] The point is this.  When the
court grants a way of necessity, an instance of a servitude imposed
by law without the landowner’s
consent, it is treated as a kind
of expropriation.
[123]
And the compensation to the burdened landowner must “be in
proportion to the advantage gained by the plaintiff and
the
disadvantages suffered by the defendant”.
[124]
That may include special damages.
[125]
In addition, the route and dimensions of the road had to be
determined in accordance with the principle of “along the

closest way and with the least intrusion” (
ter naaster lage
en minster schade
).
[126]
[150] From this it appears that the
following general principles apply to our common law of servitudes:
(a)
servitudes may not be enforced on landowners, except in the case of a
way of necessity.
Enforcement of a way of necessity may only be
done through the courts.  Compensation in proportion to the
advantage gained
by the plaintiff and the disadvantages suffered by
the defendant is payable when this happens;
(b)
the holder of the right of a general servitude may select the
essential incidental rights
to exercise the servitude, like the
premises needed and the access thereto.  This selection must be
exercised in a civil or
reasonable manner (
civiliter
).
Disputes about this choice must also be determined in court if no
agreement between the parties can be reached; and
(c)
where changed circumstances require it, the common law of servitudes
must be adapted to
arrive at a solution that is just to the parties
and does not prejudice them.  In the case of enforced servitudes
this must
be done in a manner that least inconveniences the servient
owner.
[151] So we know that the common law and
statutes must be read in harmony as far as reasonably possible.
Section 22 grants
public servitudes to network licensees.  These
must be exercised in compliance with common law principles.
Because they
are enforced general servitudes, not determined by
agreement between network licensees and landowners, the cautionary
inhibitions
the common law imposes apply.
[152]
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 section 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
[127]
is payable in respect of the exercise of the public servitudes
section 22(1) grants; and
(d)
where disputes arise about the manner of
exercising the rights under section 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,
[128]
or by way of adjudication.
[129]
Access to the property in the absence of resolution will be unlawful.
[153] Under the common law, a cardinal
principle of statutory interpretation presumes that legislation
should not alter the common
law more than necessary.
[130]
Its constitutional equivalent is this: an interpretation of a
statutory provision that is least invasive of fundamental rights
must
be adopted if it is reasonably possible to do so.
[131]
As demonstrated above, it is eminently reasonable to interpret
section 22(2) to give effect to the common law.  Once
that is
done, there is no warrant for concluding that “taking any
action” in terms of section 22(1) may be done, unabashedly,

without having “due regard” to, or complying with, the
common law.
[154] And from this flows a
statute-saving conclusion.  The possible deprivation of property
under section 22(1) is not procedurally
or substantively arbitrary.
This is because notice and consultation about the manner in which the
rights are to be exercised,
as well as about the compensation
payable, must take place.
[155] While the legislation does not
expressly include notice and compensation requirements in section
22(1), it is equally silent
on disclaiming notice and compensation
requirements.  It is true that provisions expressly stating that
compensation and notice
are not required could have been included.
But, instead, the legislation has section 22(2).  Therefore
common law requirements
of notice, consultation, and compensation
apply.  If these fail to achieve a proper result, the dispute
must be judicially
resolved.  This interpretation fully respects
common law rights without defeating or eviscerating the rights
section 22(1)
gives to network licensees.
[156]
In addition, section 3 of the Expropriation
Act provides:
“
Expropriation
of immovable property by Minister on behalf of certain juristic
persons or bodies
(1)
If a juristic person or body mentioned in subsection (2) satisfies
the Minister charged with the administration of the law mentioned
in
connection therewith that it reasonably requires any particular
immovable property for the attainment of its objects and that
it is
unable to acquire it on reasonable terms, the Minister may, at the
request of the first-mentioned Minister, and subject to
the
provisions of subsections (4) and (5), expropriate such immovable
property on behalf of that juristic person or body as if
it were
required for public purposes.
(2)
The juristic persons or bodies contemplated in subsection (1) are—
(a)
a university as defined in section 1 of the Universities Act, 1955
(Act 61 of
1955);
(b)
a university college as defined in section 1 of the Extension of
University Education
Act, 1959 (Act 45 of 1959);
(c)
a technikon mentioned in section 1 of the Technikons (National
Education) Act, 1967
(Act 40 of 1967), or section 1 of the Technikons
Act, 1967 (Act 40 of 1967);
(d)
a governing body as defined in section 1 of the Educational Services
Act, 1967 (Act
41 of 1967);
(e)
the Atomic Energy Board mentioned in section 11 of the Atomic Energy
Act, 1967 (Act
90 of 1967);
(f)
a college as defined in section 1 of the Indians Advanced Technical
Education Act,
1968 (Act 12 of 1968);
(g)
the Council mentioned in section 1 of the National Monuments Act,
1969 (Act 28 of
1969); and
(h)
any juristic person, other than a juristic person mentioned in
paragraph (a), (b), (c), (e), (f) or (g), established by or under
any
law for the promotion of any matter of public importance.
(3)
If the Minister expropriates any immovable property on behalf of a
juristic person
or body in terms of subsection (1), such juristic
person or body shall become the owner thereof on the date of
expropriation in
question.
(4)
There shall be payable in respect of the expropriation of any
immovable property in
terms of subsection (1) the fees, duties and
other charges which would have been payable by the juristic person or
body concerned
in terms of any law if it had purchased that property.
(5)
All costs incurred by the said Minister in the performance of his
functions in terms
of subsection (1) shall be refunded to him by the
juristic person or body concerned.”  (Emphasis added.)
[157] Section 22(2) requires that due
regard must also be had to this statute when action is taken under
section 22(1) of the Act.
The wording of section 22(1) contains
no express or necessary exclusion of the operation of the
Expropriation Act.  Therefore,
the public law protection of
compensation for expropriation by juristic persons other than the
state found in the Expropriation
Act also applies to action taken
under section 22(1).  A tenable explanation why no explicit
mention was given to expropriation
in section 22 is the fact that
electronic communication network services are now provided by private
persons and not only by the
state, as was the case previously.
Once again, this route shows there is no arbitrary deprivation of
property.
PAJA
[158]
In
MTN
[132]
and
Msunduzi
,
[133]
the Supreme Court of Appeal held that action taken by a licensee
under section 22(1) is administrative action for the purposes
of
PAJA.  Network licensees acting under both the contested
provisions are empowered by the Act to exercise public power and

perform an important public function.  Under PAJA, a decision
taken by a private entity wielding public power and performing
a
public function in terms of an empowering provision, constitutes
“administrative action” if it adversely affects
the
rights of another and has a direct, external legal effect.  The
actions taken by network licensees under the Act, the
Court held,
fall within the provisions of PAJA.  It would follow that action
a licensee takes in terms of the provisions must
be lawful,
reasonable and procedurally fair.
[134]
[159]
However, the ample statutory provisions and
common law principles that we have set out above make it unnecessary
to determine the
question whether PAJA applies.  We prefer to
leave that question open.
Section
25 of the Constitution
[160]
The High Court found that there is no
authority that the City is a bearer of property rights under section
25.
[135]
The contrary approach, it said, would be inconsistent with section
7(1) of the Constitution.
[136]
The City contends that, even though it is not a bearer of section 25
rights, the Constitution’s broad standing provisions
do not
preclude it from asserting protection under section 25(1).  This
contention is not persuasive.
[161]
Section 38 of the Constitution provides
that:
“
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights.  The persons who may
approach a court
are—
(a)
anyone
acting in their own interest;
(b)
anyone
acting on behalf of another person who cannot act in their own name;
(c)
anyone
acting as a member of, or in the interest of, a group or class of
persons;
(d)
anyone
acting in the public interest
;
and
(e)
an
association acting in the interest of its members.”
(Emphasis added.)
[162]
This provision undoubtedly allows persons
to assert that a right in the Bill of Rights has been infringed, even
if they are not
acting in their own interest.  Section 38(d)
may indeed afford the City the capacity to act in the interest of the
public
within its municipality.  But the City neither pleaded
this capacity, nor did it proffer any submissions to that effect.
[163]
This is hardly surprising.  The City’s
case was a frontal challenge to the lawfulness of the licensee’s
intended
conduct.  It was acting, and expressed itself to be
acting, solely as a government entity.  No question of public
interest
representative capacity was suggested.  And, in the
face of the statute’s beneficent purposes, it would have been
hard
for the City to contend that it was acting on behalf of the
citizens whom it was depriving of quick broadband access.
[164]
And there is indeed no evidence to suggest
that residents of the City of Tshwane would be
detrimentally affected by the
construction and installation of
electronic communications infrastructure or networks, or that
residents’ private land may
be similarly affected by licensees’
actions.  So nothing suggests that the City’s challenge is
intended to protect
broader interests.  While the City may have
been able to advance an argument (however shaky) that its challenge
is in the
public interest or that it is in fact acting on behalf of
its residents, it just did not.
[165]
It remains necessary to address the rights
of private landowners under section 25.  Their position is
emblematised in
the sixth intervener, SMI Trading.
Property
and deprivation
[166]
What a network licensee does under section
22(1) on a private landowner’s land may, of course, subtract
from ordinary rights
of ownership.  The provision, after all,
allows the licensee to enter land, hook up a cable network, and keep
it in good shape.
That entails a loss of pure ownership
rights.  Depending on the extent of the loss, this may
constitute a deprivation of property
under section 25(1) of the
Constitution.
[167]
Does section 22 inflict a deprivation?
This depends on the extent of the intrusion in the property or
limitation of its use
or enjoyment.
There
must be interference with property that is significant enough to
“have a legally relevant impact on the rights of the
affected
party before deprivation of property under section 25 is
established”.
[137]
[168]
First, the City.  Even if the City did
have section 25 rights, there has been no showing that Link Africa’s
intended
actions amount to substantial interference with the City’s
infrastructure.  The High Court correctly found that even
if the
Bill of Rights property provision applied to the City, the provisions
are nevertheless valid.
[169]
The High Court acknowledged that, although
the statute’s constitutionality was not challenged in
SMI
Trading
, the Supreme Court of Appeal’s
reasoning bears directly on the section 25 argument.  That Court
adopted the reasoning
in
MTN
,
and rejected the argument that section 22 allowed for an arbitrary
deprivation of property because “[n]ot all deprivations
of
property are arbitrary.  Everything depends on the extent of the
deprivation, viewed against the purpose of the deprivation”
[138]
and “[a]ny decision by the ECNS [electronic communication
network services] licensee which gave rise to an arbitrary
deprivation
of property would not be permitted by section 22 and
would be set aside on review”.
[139]
[170]
The Court found that the City failed to
adequately explain why Link Africa’s installation of
fibre-optic cables was so intrusive
as to amount to an arbitrary
deprivation of property.  The reasons were all in the evidence:
fibre-optic cables are installed
using existing underground
infrastructure, so the technology avoids the disruption and high
costs associated with traditional road-digging.
[140]
[171]
This is strong and persuasive reasoning.
In fact, the High Court found the deployment of Link Africa’s
network in the
City’s sewer system actually provides advantages
to the City and people and businesses requiring network access.
[141]
Fibre optic cables are the fastest and most effective product on
the market to implement electronic communications networks,
[142]
and provide a safe and secure system that has practically unlimited
bandwidth.
[143]
[172]
In this Court, the City has equally shown
no harm.  The City’s attack on the statute and the vital
broadband expansion
it permits is entirely notional, based on the
idea of intrusion on municipal powers, without any real-world
substance.  There
is no iota of evidence that installing Link
Africa’s electronic communications network damages or impairs
City infrastructure.
Nor is there any evidence that it could
cause harm or prejudice to the City or its people.  Precisely
put, the City has provided
no evidence that Link Africa’s
installation of fibre-optic cables is beyond normal restriction of
use and enjoyment of the
property where the cables are installed.
[173]
SMI Trading’s position is different.
The MTN base station located on SMI’s property is big.
Very big –
approximately 110 square metres.  That provides
the Court with a basis for finding intrusiveness.  That kind of
construction,
and the activity it necessitates, may indeed amount to
substantial interference.  So circumstances may arise where a
licensee’s
activities may interfere so sharply with a property
owner’s rights that there is a deprivation.
Arbitrariness
[174]
Even so, we struggle fruitlessly to find
the arbitrariness.  The deprivation is in fact entirely
reasonable.
[144]
This is because of the landowner’s multiple safeguards, both
substantive and procedural.  The statute provides
not only
sufficient reason for the deprivation, but affords a compelling basis
showing that the provisions at issue are needed.
[175]
The Minister provided fulsome evidence
showing the acute need to roll out electronic communication networks
so as to avoid negative
consequences for the South African economy.
That evidence neither the City nor SMI contested.  They could
not.
And, crucially, the City accepted the “provisions of
sections 22 and 24 of the ECA are intended to serve a legitimate and

important legislative purpose [that is] essential for the universal
rolling out of electronic communications services”.
[176]
The Minister explained that one of the main
purposes of the Act is to “facilitate the speedy and effective
roll out of telecommunications
networks for the benefit of the South
African public as a whole”; promote the universal provision of
electronic communications
networks and electronic communications
services and connectivity for everyone in South Africa; and encourage
“an environment
of open, fair and non discriminatory
access to  broadcasting services, electronic communication
networks and to electronic
communications services”.
[177]
The Minister’s deposition added
important facts that provided context for sections 22 and 24 of the
Act.  Currently,
South Africa’s access to broadband
telecommunications sorrowfully lags behind comparable countries.
To remedy this,
national government has committed itself to ensure
universal access to electronic communication network services.
This is
expressed in the Act, and also in a national broadband policy
that aims to give effect to the constitutional commitment to “improve

the quality of life of all citizens and free the potential of each
person”.
[178]
The public’s increased access to
broadband telecommunications offers realistic promise of increases in
economic output, new
jobs, educational opportunities, enhanced public
service delivery and rural development.  As the Minister
contended in argument,
there is increasing evidence “of
linkages between investment in electronic communications
infrastructure and improvements
in the economy”.  By
contrast, what we now have is a lack of “always-available,
high-speed and high quality bandwidth
required by business, public
institutions and citizens” which “has impacted negatively
on South Africa’s development
and competitiveness”.
[179]
And what has cost the most and caused the
majority of delays in the roll-out of these networks?  The
Minister tells us.
It has been the burden of negotiating with
individual municipalities and state agencies for wayleaves
[145]
and rights of way.  It is estimated that civil works account for
about 80% of the cost of constructing networks.  In
the case of
the City of Tshwane alone, the roll-out has been becalmed for four
petrifying years.
[180]
Why?  The Minister’s evidence
shows that the rollout of broadband telecommunications is good for
economic growth, education
and public service delivery.  South
Africa lags behind comparable countries.  The remedy demands
increased network infrastructure.
These considerations –
undisputed, and indisputable – show compellingly why the
powers the contested provisions
provide are necessary to achieve the
ends sought.  They are not substantively arbitrary.
[181]
We now revisit the common law of
servitudes.  The application of this body of law means the
provisions at issue are not arbitrary.
Because sections 22 and
24 impose what amount to public servitudes, licensees must exercise
their statutory rights in a civil and
reasonable manner.  This
means the licensee must give reasonable notice to the owner of the
property where it intends locating
the works.  And of course,
the licensee must consult with the owner about proposed access.
[182]
Section 24 imposes several conditions
limiting a licensee’s power when it seeks to construct,
maintain, alter or remove pipes,
tunnels, or tubes required for
electronic communications network facilities, rendering it
constitutionally compliant.  First,
the provision requires that
licensees afford 30 days’ prior written notice to the local
authority or person owning or responsible
for the care and
maintenance of the street, road or footpath.  Next, a local
authority or person to whom the pipe belongs
may at all times
supervise work in connection with alteration of the pipes.  The
provision also requires a licensee to pay
all reasonable expenses
incurred by the local authority or person in connection with any
alteration or removal under section 24.
Lastly, it requires a
licensee to pay for any supervision of work relating to alteration.
[183]
In this way, section 24 provides multiple
procedural protections to landowners.
[184]
In sum: the public-compelling need for the
provisions in issue, taken together with the common law protections
that govern the exercise
of the power they confer, establish that
sections 22 and 24 are not arbitrary.
Powers
and duties of municipalities
[185]
Local authorities are in a distinctive
position from private landowners.  As far as municipalities are
concerned, “applicable
law” in section 22(2) refers to
laws that they may make within their constitutional legislative
competence in terms of Chapter 7
of the Constitution.  If
laws fall within that competence, they must be complied with before
section 22(1) may be exercised.
In each case where a local
authority asserts that it has the constitutional competence to
require compliance with its own laws,
it must be tested against the
provisions of Chapter 7 of the Constitution to determine whether it
really has that constitutional
competence.
[186]
Telecommunications is not an area over
which local authorities hold constitutional competence.  Here,
we agree with the minority
judgment that the City failed to make out
a case that any of its competencies under the Constitution or
legislation have been infringed.
[187]
But Msunduzi advanced an illuminating
argument that commands attention.  Although it conceded that
electronic communications
fall within the national domain, it urged
that municipalities have rights and powers to regulate
the
manner
in which the national power is
exercised.  Hence, Msunduzi argued, the licensee has some
obligation to engage with the local
authority when it plans to enter
upon public land.  It must take into account practical
considerations about order and safety.
[188]
In argument, Msunduzi propounded that a
licensee cannot simply come into a municipality and without warning
dig up a busy intersection,
or lay cables along a busy pedestrian
walk without consulting the local authority.  Counsel for all
the licensees were quick
to agree.  And rightly so.  We
think Msunduzi’s argument is sound.  Section 151(4) of the
Constitution provides
that national or provincial government “may
not compromise or impede a municipality’s ability or right to
exercise
its powers or perform its functions”.  This must
be read with section 151(3), which provides that “[a]
municipality
has the right to govern, on its own initiative, the
local government affairs of its community, subject to national and
provincial
legislation, as provided for in the Constitution”.
And section 156(3) provides that “[s]ubject to section 151(4),

a by-law that conflicts with national or provincial legislation is
invalid”.
[189]
These provisions indicate that licensees,
though empowered by national legislation, must abide by municipal
by-laws.  The only
limit is that by-laws may not thwart the
purpose of the statute by requiring the municipality’s
consent.  If by-laws
exist that regulate the manner (what
counsel called the “modality”) in which a licensee should
exercise its powers,
the licensee must comply.
[190]
Msunduzi also argued that this forms part
of the licensee’s obligation to act in a manner that is lawful,
reasonable and procedurally
fair as required by PAJA.  As noted
above, we prefer to leave this issue open.
Order
[191]
For these reasons the following order is
made:
1.
Leave to appeal is granted.
2.
The appeal is dismissed.
3.
The City of Tshwane Metropolitan
Municipality is ordered to pay the costs of Link Africa (Pty)
Limited.
For the Applicant:
For the First Respondents:
For the Third Respondent:
For the First Intervening
Party:
For the Second Intervening
Party:
For the Third Intervening
Party:
For the Fourth
Intervening Party:
For the Fifth Intervening
Party:
For the Sixth Intervening
Party:
V Ngalwana SC, S Khumalo,
F Karachi and S Van Vuuren instructed by Dlamini Attorneys.
S Budlender and N Dandazi
instructed by Bowman Gilfillan.
M Chaskalson SC and K
Pillay SC instructed by the State Attorney.
D Unterhalter SC and J
Wilson instructed by Roestoff and Kruse Attorneys.
A Dickson SC, H Gani, and A
Jennings instructed by Matthew Francis Inc.
D Unterhalter SC, and B
Makola instructed by Hogan Lovells.
D Unterhalter SC, M Du
Plessis and A Coutsoudis instructed by Nortons Incorporated.
M Basslian SC, I Opperman
SC and O Ben-Zeev instructed by Webber Wentzel.
C Watt-Pringle SC and
K McLean instructed by Eugene Marais Attorneys.
[1]
These include for example the Independent
Broadcasting Authority Act 153 of 1993 and the Independent
Communications Authority
of South Africa Act 13 of 2000 (ICASA Act).
[2]
36 of 2005 (as amended by the
Electronic
Communications Amendment Act 37 of 2007
and the Electronic
Communications Amendment Act 1 of 2014).
[3]
Section 5(2) of the Act states:
“
The
Authority may upon application and due consideration in the
prescribed manner, grant individual licences for the following:
(a)
subject to subsection (6), electronic
communications network services;
(b)
broadcasting services; and
(c)
electronic communication services.”
[4]
The Act defines an electronic communications
network as:
“
Any
system of electronic communications facilities (excluding subscriber
equipment), including without limitation—
(a)
satellite systems;
(b)
fixed systems (circuit-and
packet-switched);
(c)
mobile systems;
(d)
fibre optic cables (undersea and
land-based);
(e)
electricity cable systems (to the extent
used for electronic communications services); and
(f)
other transmissions systems, used for
conveyance of electronic communications.”
[5]
Under the Act an electronic communications
facility “includes but is not limited to any—
(a)
wire;
(b)
cable (including undersea and land-based
fibre optic cables);
(c)
antenna;
(d)
mast;
(e)
satellite transponder;
(f)
circuit;
(g)
cable landing station;
(h)
international gateway;
(i)
earth station; and
(j)
radio apparatus or other thing,
which
can be used for, or in connection with, electronic communications,
including where applicable—
(i)
collocation space;
(ii)
monitoring equipment;
(iii)
space on or within poles, ducts, cable
trays, manholes, hand holds and conduits; and
(iv)
associated support systems, sub-systems
and services, ancillary to such electronic communications facilities
or otherwise necessary
for controlling connectivity of the various
electronic communications facilities for proper functionality,
control, integration
and utilisation of such electronic
communications facilities.”
[6]
Section 22 is quoted in [42] below.
[7]
Local Government: Municipal Systems Act 32 of
2000
.
[8]
In its papers Link Africa explained the wayleave
process as follows:
“
The
wayleave process is the process in terms of which any person who
wishes to make use of space on a municipal road or install
any
infrastructure on or under a road such as an electricity network
operator, a water services provider, a telecommunications
network
operator, or an outdoor advertising service provider which erects
billboards in the road reserve, notifies the relevant
municipality
of its intention to do so and agrees with the municipality on the
manner in which it will access the road reserve.
This
includes, for example, agreeing on traffic restrictions and road
markings to be put in place.”
[9]
Mobile Telephone Networks (Pty) Ltd v SMI
Trading CC
[2012] ZASCA 138
;
2012 (6)
SA 638
(SCA) (
MTN
).
[10]
3 of 2000.
[11]
Above
n 9 at paras 21 and 29.
[12]
This was done in terms of
section 5
of PAJA.
[13]
Section 6
of PAJA.
[14]
Mandamus
generally means an order a court issues directing a party to do or
refrain from doing something. See
Sibiya
and Others v Director of Public Prosecutions
[2006] ZACC 22
;
2005 (5) SA 315
(CC);
2006 (2) BCLR 293
(CC) at
paras 5-9.
[15]
Msunduzi Municipality v Dark Fibre Africa
[2014] ZASCA 165
(
Msunduzi
).
[16]
Directions of this Court of 9 February 2015
stated:
“
The
Chief Justice has issued the following directions:
1.
The application is set down for hearing on
Tuesday, 12 May 2015 at 10h00.
2.
The opposing parties must, on or before
Monday, 2 March 2015, file an agreed statement of facts based on the
factual findings
of the High Court that are pertinent to the
issues.  If no agreement can be reached:
a.
The applicant must, on or before 9 March
2015, file a statement setting out the factual findings of the High
Court that the applicant
disputes, together with only those portions
of the record that are relevant to the impugned findings.
b.
The respondents must, on or before 13
March 2015, and if they so wish, file a statement setting out the
factual findings of the
High Court that the respondents
dispute, together with only those portions of the record that are
relevant to the impugned
findings.
3.
The applicants must, on or before 20 March
2015, file a newly paginated record that comprises the statement of
facts agreed upon,
or the parties’ respective statements of
facts and the portions of the record considered relevant by them, as
well as a
copy of the judgment in the High Court and Supreme Court
of Appeal.
4.
Written argument, including argument on
the merits of the appeal, must be lodged by―
a.
the applicant, on or before 27 March 2015;
and
b.
the respondents, on or before 2 April
2015.
5.
Be advised that these directions will also
be provided to the parties in the matter CCT 195/14
Msunduzi
Municipality v Dark Fibre RF (Pty) Ltd
on the basis that these matters raise related issues.
6.
Further directions may be issued.”
[17]
Rule 8
of the Rules of this Court provides:
“
(1)
Any person entitled to join as a party or liable to be joined as a
party in
the proceedings may, on notice to all parties, at any stage
of the proceedings apply for leave to intervene as a party.
(2)
The Court or the Chief Justice may upon such an application make

such order, including any order as to costs, and give such
directions as to further procedure in the proceedings as may be

necessary.”
See also
Independent
Newspapers (Pty) Ltd v Minister for Intelligence Services: In re:
Masetlha v President of the Republic of South Africa
and Another
[2008] ZACC 6
;
2008 (5) SA 31
(CC);
2008 (8) BCLR 771
(CC) at paras
17-8.
[18]
Id.  See also
Gory
v Kolver NO and Others
[2006] ZACC 20
;
2007 (4) SA 97
(CC);
2007 (3) BCLR 249
(CC) at para 13.
[19]
MTN
above n 9 at
paras 15 and 18 and
Msunduzi
above n 15.
[20]
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Others
[2004]
ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) at para 90.
[21]
Department of Land Affairs and Others v
Goedgelegen Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007 (6) SA 199
(CC);
2007 (10) BCLR 1027
(CC) at
para 53.
[22]
Fraser v ABSA Bank Ltd (National Director of
Public Prosecutions as Amicus Curiae)
[2006] ZACC 24
;
2007 (3) SA 484
(CC);
2007 (3) BCLR 219
(CC) at para
43.
[23]
Id at para 47.
[24]
Phumelela Gaming and Leisure Ltd v Gründlingh
and Others
[2006] ZACC 6; 2007 (6) SA
350 (CC); 2006 (8) BCLR 883 (CC).
[25]
Id at paras 33 and 35.
[26]
Section 20(1)
provides: “This chapter
applies only to electronic communications service licensees.”
[27]
Section 21
reads:
“
Rapid
deployment of electronic communications facilities
(1)
The Minister must, in consultation with
the Minister of Cooperative Governance and Traditional Affairs, the
Minister of Rural
Development and Land Reform, the Minister of Water
and Environmental Affairs, the Authority and other relevant
institutions,
develop a policy and policy directions for the rapid
deployment and provisioning of electronic communications facilities,
following
which the Authority must prescribe regulations.
(2)
The regulations must provide procedures
and processes for—
(a)
obtaining any necessary permit,
authorisation, approval or other governmental authority including
the criteria necessary to qualify
for such permit, authorisation,
approval or other governmental authority; and
(b)
resolving disputes that may arise between
an electronic communications network service licensee and any
landowner, in order to
satisfy the public interest in the rapid
rollout of electronic communications networks and electronic
communications facilities.
(3)
The policy and policy directions
contemplated in subsection (1) must be made within twelve (12)
months of the coming into operation
of the Electronic Communications
Amendment Act, 2014.”
[28]
See section 23(1) of the Act.
[29]
Section 23 provides:
“
(1)
If any local authority and an electronic communications network
service licensee
agree that the provision of the electricity supply
and electronic communications network service to a particular area
must be
provided by means of an underground cable, that local
authority may on any premises within the said area, when installing
such
cable for an underground electricity supply line on the said
premises, provide a conduit pipe or other facility for the
installation
of an underground electronic communications facility
from a point of connection on the street boundary to a building on
those
premises, in accordance with the requirements of the
electronic communications network services licensee.
(2)
The cost of the provision of the said conduit pipe or other
facility—
(a)
is payable to the local authority in
question; and
(b)
is, for the purpose of any law, considered
to be fees payable by the owner of the premises in question to the
local authority
in respect of the electricity supply line.”
[30]
Section 25(6) reads:
“
If
the electronic communications network service licensee agrees to
make the deviation or alteration as provided for in subsection
(3),
the cost of such deviation or alteration must be borne by the person
at whose request the deviation or alteration is effected.”
[31]
Section 26(2) provides:
“
Any
person intending to erect any such fence must give the electronic
communications network service licensee notice in writing
of not
less than six weeks of his or her intention to erect such fence.”
[32]
Section 27(3) reads:
“
Where
the electronic communications networks or electronic communications
facility is actually interfered with or endangered by
any such tree
or vegetation, the licensee may remove such tree or vegetation
without any such notice.”
[33]
Section 7(2) of the Constitution provides:
“
The
rights in the Bill of Rights are subject to the limitations
contained or referred to in section 36, or elsewhere in the Bill.”
[34]
Section 8(1) of the Constitution reads:
“
The
Bill of Rights applies to all law, and binds the legislature, the
executive, the judiciary and all organs of state.”
[35]
Coetzee v Government of the Republic of South
Africa; Matiso and Others v Commanding Officer Port Elizabeth Prison
and Others
[1995] ZACC 7
;
1995 (4) SA
631
(CC);
1995 (10) BCLR 1382
(CC) at para 9.
[36]
See among others
First
National Bank of SA Limited t/a Wesbank v Commissioner for the South
African Revenue Services and Another; First National
Bank of SA
Limited t/a Wesbank v Minister of Finance
[2002] ZACC 5
;
2002 (4) SA 768
(CC);
2002 (7) BCLR 702
(CC) (
FNB
);
Mkontwana v Nelson Mandela Metropolitan
Municipality
[2004] ZACC 9
;
2005 (1)
SA 530
(CC);
2005 (2) BCLR 150
(CC) (
Mkontwana
);
Reflect-All 1025 CC and Others v MEC
for Public Transport, Roads and Works, Gauteng Provincial Government
and Another
[2009] ZACC 24
;
2009 (6)
SA 391
(CC);
2010 (1) BCLR 61
(CC) (
Reflect-All
);
and
Offit Enterprises (Pty) Ltd and
Another v Coega Development Corporation (Pty) Ltd and Others
[2010] ZACC 20; 2011 (1) SA 293 (CC); 2011 (2) BCLR 189 (CC).
[37]
Mkontwana
id at
para 32.
[38]
Reflect-All
above n 36 at para 39.
[39]
Id at para 52.
[40]
See
Mabaso v Law
Society of the Northern Provinces and Another
[2004] ZACC 8
;
2005 (2) SA 117
(CC);
2005 (2) BCLR 129
(CC) at paras
13 4 and
Van der Merwe v Road
Accident Fund and Another
(
Womens
Legal Centre Trust as Amicus Curiae
)
[2006] ZACC 4
;
2006 (4) SA 230
(CC);
2006 (6) BCLR 682
(CC) at paras
7-8.
[41]
S v Mamabolo
(
E
TV and Others Intervening
)
[2001] ZACC
17
;
2001 (3) SA 409
(CC);
2001 (5) BCLR 449
(CC) at para 41.
[42]
NM and Others v Smith and Others
(
Freedom
of Expression Institute as Amicus Curiae
)
[2007] ZACC 6
;
2007 (5) SA 250
(CC);
2007 (7) BCLR 751
(CC) at
para 134.
[43]
MTN
above n 9 at
paras 21 and 29.
[44]
See the definition of “administrative
action” under section 1 of PAJA, in particular paragraph (b).
[45]
Section 29(3) of the Constitution provides:
“
Everyone
has the right to establish and maintain, at their own expense,
independent educational institutions that—
(a)
do not discriminate on the basis of race;
(b)
are registered with the state; and
(c)
maintain standards that are not inferior to standards at comparable

public educational institutions.”
[46]
Baxter
Administrative
Law
2
ed (Juta & Co Ltd, Cape Town
1984) at 557.
[47]
Liebenberg and Others v Brakpan Liquor
Licensing Board and Another
1944 WLD
52
(
Liebenberg
)
at 54-5.
[48]
It is commonly known as the
nemo
judex in causa sua
principle.
[49]
Commonly known as the
audi
alteram partem
rule.
[50]
This section provides:
“
A
court or tribunal has the power to judicially review an
administrative action if—
(a)
the administrator who took it—
(i)
was not authorised to do so by the
empowering provision;
(ii)
acted under a delegation of power which was not authorised by the

empowering provision; or
(iii)
was biased or reasonably suspected of bias.”
[51]
National Credit Regulator v Opperman and
Others
[2012] ZACC 29
;
2013 (2) SA 1
(CC);
2013 (2) BCLR 170
(CC) at paras 73-80.
[52]
Section 156(1) of the Constitution provides:
“
A
municipality has executive authority in respect of, and has the
right to administer—
(a)
the local government matters listed in Part B of Schedule 4 and
Part
B of Schedule 5; and
(b)
any other matter assigned to it by national or provincial
legislation.”
[53]
Section 151(4) of the Constitution provides:
“
The national
or a provincial government may not compromise or impede a
municipality’s ability or right to exercise its powers
or
perform its functions.”
[54]
Id.
[55]
Mbatha v University of Zululand
[2013] ZACC 43
; (2014) 35 ILJ 349 (CC);
2014 (2) BCLR 123
(CC) at
para 172 and the authorities cited therein.
[56]
Majority judgment at [150] to [155].
[57]
Motswagae and Others v Rustenburg Local
Municipality and Another
[2013] ZACC
1
;
2013 (2) SA 613
(CC);
2013 (3) BCLR 271
(CC) (
Motswagae
)
at para 14.
[58]
Coetzee
above n
35.
[59]
Majority judgment at [125] to [127].
[60]
Id at [156] to [157].
[61]
Section 3 is quoted in [156] of the majority
judgment.
[62]
Section 25(2) of the Constitution provides:
“
Property
may be expropriated only in terms of law of general application—
(a)
for a public purpose or in the public
interest; and
(b)
subject to compensation, the amount of
which and the time and manner of payment of which have either been
agreed to by those affected
or decided or approved by a court.”
[63]
Agri SA v Minister for Minerals and Energy
[2013] ZACC 9
;
2013 (4) SA 1
(CC);
2013 (7) BCLR 727
(CC) (
Agri
SA
) at para 67.
[64]
Section 34 provides:
“
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
[65]
Majority judgment at [119].
[66]
CUSA v Tao Ying Metal Industries and Others
[2008] ZACC 15; 2009 (2) SA 204 (CC); 2009 (1) BCLR 1 (CC).
[67]
Director of Public Prosecutions, Transvaal v
Minister of Justice and Constitutional Development and Others
[2009] ZACC 8
;
2009 (4) SA 222
(CC);
2009 (7) BCLR 637
(CC)
(
Director of Public Prosecutions
).
[68]
Id at para 43.
[69]
Alternatively referred to as the ECA.
[70]
See
Telkom SA Ltd v
MEC for Agricultural and Environmental Affairs, KwaZulu-Natal, and
Others
[2002] ZASCA 96
;
2003 (4) SA 23
(SCA) (
Telkom
),
which sets out the history, going back to 1911, of the
telecommunications legislation that preceded the present statute.

Section 70 of the Telecommunications Act 103 of 1996
(Telecommunications Act) in issue there, similarly to the statute in
issue
here, provided as follows:
“
Entry
upon and construction of lines across any lands—
(1)
A fixed line operator may, for the
purposes of provision of its telecommunications services, enter upon
any land, including any
street, road, footpath or land reserved for
public purposes, and any railway, and construct and maintain a
telecommunications
facility upon, under, over, along or across any
land, street, road, footpath or waterway or any railway, and alter
or remove
the same, 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 the environmental policy
of the Republic.”
[71]
See [147] to [149] below for a further discussion
of the right of way of necessity.
[72]
Further examples are to be found in the
predecessors of the impugned provisions in the Act.  The
origins of the impugned
provisions are found in sections 82 and 83
of the Post Office Administration and Shipping Combination
Discouragements Act 10
of 1911 (Post Office Administration Act)
which provided as follows:
“
82.
The Postmaster-General may, for the purposes of this Act, enter upon
any lands belonging
to any person, including streets, roads,
footpaths, or lands reserved for public purposes, and any railway,
and may construct
and maintain a telegraph line or any work upon,
under, over, along, or across any land, street, road, footpath, or
waterway,
or any railway, and may alter or remove the same; and may,
for the purpose, attach wires, stays, or any other kind of support
to any building or other structure.
83.
The Postmaster-General may, after reasonable notice in writing to
the
local authority or person owning or having the care and
management of any street, road, or footpath, construct and maintain
in
the manner specified in that notice any telegraph lines, pipes,
tunnels, or tubes, required for telegraphic purposes under any
such
street, road or footpath, and may alter or remove the same; and for
such purposes may break or open up any street, road,
or footpath,
and alter the position thereunder of any pipe (not being a sewer
drain or main) for the supply of water, gas, or
electricity:
Provided that the alteration in the position of any such pipe shall
not be made except under the supervision of
the local authority or
person to whom the pipe belongs or by whom it is used, unless that
local authority or person fail to supervise
at the time specified in
the notice for the commencement of the work, or discontinue the
supervision during the work.  The
Postmaster-General shall pay
all reasonable expenses to which any such local authority or person
may be put in connection with
any alteration or removals as
aforesaid or on account of the supervision aforesaid.”
These sections are to be
read with section 84 of the Post Office Administration Act which
provides in relevant part:
“
(1)
In the carrying out of all such works the Postmaster-General shall
take all
reasonable precautions for the safety of the public, but
the Postmaster-General shall not be liable to give any compensation,
save so far as actual injury may be caused to any work or property,
or standing crops, other than trees or underwood as hereinafter

referred to, or save so far as injury to any person may be caused by
the failure of the Postmaster-General to carry out the provisions
of
this section . . . .
(2)
The compensation in the case of the injury
aforesaid being caused to any work, property, or standing crops,
shall, if the amount
cannot be otherwise agreed upon, be settled by
arbitration.”
The
Post Office Act 44 of 1958 (Post Office Act) replaced the Post
Office Administration Act.  Sections 80-1 of the Post
Office
Act read with section 82 are almost identical to sections 82-4 of
the Post Office Administration Act.
The
Telecommunications Act
replaced
and re-enacted provisions of the Post Office Act and, in
2005, the ECA finally replaced the
Telecommunications Act.
Malan
JA in
MTN
above
n 9 at para 11 discusses the transition from the
Telecommunications
Act to
the ECA:
“
The
rights contained in
sections 70
to
77
of the
Telecommunications Act
came
to be re enacted as
sections 22
to
29
of the ECA.
The purpose of the older sections was to eliminate all possible
constraints on the state in its providing of
communication
services.  Due to the convergence of these services and the
introduction of competition in the telecommunications
industry the
rights and privileges that existed under the older sections now had
to be extended to persons other than the state
or the fixed line
operator.  Hence the enactment of
sections 22
to
29
of the
ECA.”
For a fuller exposition of
these developments in our law see
Telkom
above n 70 at paras
17-21.
Further examples may be
found in Van der Merwe
Sakereg
2 ed (Butterworths, Durban
1989).
[73]
See [156] to [157] below for further discussion.
[74]
FNB
above n 36;
Reflect-All
above
n 36; and
Agri SA
above
n 63.
[75]
Sections 20-9 of the Act.
[76]
FNB
above n 36
at para 49 and
Shoprite
Checkers
(Pty) Limited v Member of the Executive Council for Economic
Development, Environmental Affairs and Tourism: Eastern
Cape and
Others
[2015] ZACC 23
(
Shoprite
)
at
para 48.
[77]
FNB
id at para
52.
[78]
A servitude or the power to exercise a servitude
may be created by statute.  Van der Merwe and de Waal
“Servitudes”
in
LAWSA
2 ed (2010) vol 24 (
LAWSA
)
at para 615.
[79]
Minority judgment at [52] to [55].
[80]
Section 38 provides in relevant part:
“
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights.  The persons who
may approach a court
are—
. . .
(d)
anyone acting in the public interest.”
[81]
City of Tshwane Metropolitan Municipality v
Link Africa (Pty) Ltd and Others
[2014] ZAGPPHC 166;
[2014] 2 All SA 559
(GP) (High Court judgment)
at para 3.5.
[82]
Investigating Directorate: Serious Economic
Offences and Others v Hyundai Motor Distributors (Pty) Ltd and
Others: In Re Hyundai
Motor Distributors (Pty) Ltd and Others v Smit
NO and Others
[2000] ZACC 12
;
2001 (1)
SA 545
(CC);
2000 (10) BCLR 1079
(CC) (
Hyundai
)
at para 21.
[83]
Cool Ideas 1186 CC v Hubbard and Another
[2014] ZACC 16
;
2014 (4) SA 474
(CC);
2014 (8) BCLR 869
(CC) (
Cool
Ideas
) at para 28.
[84]
Bertie van Zyl (Pty) Ltd and Another v
Minister for Safety and Security and Others
[2009] ZACC 11
;
2010 (2) SA 181
(CC);
2009 (10) BCLR 978
(CC)
quoting
Hyundai
above n 82 at para 22.
[85]
Hyundai
id at
paras 22-3.
[86]
Minority judgment at [96] to [99].  In
particular, the issue of what “due regard to applicable law”
means in
respect of section 22(2) has been before two High Courts
and two Supreme Court of Appeal panels.  Moreover, in the
hearing
before this Court, counsel for both the City and Link Africa
were asked whether “applicable law” included the common

law.  While counsel for the City agreed that the common law was
indeed applicable, Link Africa contended that the common
law is
supplanted by the Act.  This judgment has thus permissibly
proceeded to elaborate on the existing findings in the
courts below
and arguments proffered by counsel, and extends the reasoning by
instancing servitudes as a part of the common law,
which is
“applicable law” to which “due regard” must
be had in terms of section 22(2) of the Act.
[87]
See generally
CUSA
above n 66 at paras 67 and 132. See
also
Director of Public Prosecutions
above n 67 at para 36:
“
The
rationale for permitting a court to raise, of its own accord, a
constitutional issue is rooted in the supremacy of the Constitution.
Apart from this, our
Constitution contemplates that there will be a coherent system of
law based on the Constitution, in
particular, the Bill of Rights.
Courts have a crucial role to play in developing this system of law
with the Constitution as
their guide.  It is the duty of all
courts to uphold the Constitution and a court may thus raise a
constitutional issue
of its own accord.”  (References
omitted.)
See also
Cronimet
Chrome Mining SA (Pty) Ltd and Others v Brodsky Trading 224 CC t/a
Platinum Unlimited Estates, In re: Brodsky Trading
224 CC t/a
Platinum Unlimited Estates v Nell and Others
[2013] ZASCA 155
at para 16 citing
Paddock
Motors (Pty) Ltd v Igesund
1976 (3)
SA (A) 16 at 24B-C:
“
If
. . . the parties were to overlook a question of law arising from
the facts agreed upon, a question fundamental to the issues
they
have discerned and stated, the Court could hardly be bound to ignore
the fundamental problem and only decide the secondary
and dependent
issues actually mentioned in the special case.  This would be a
fruitless exercise, divorced from reality,
and may lead to a wrong
decision.”
[88]
Section 2 of the Act.
[89]
However, section 94 of the Act provides that
“[i]n the event of any conflict between the provisions of this
Act, the related
legislation or any other law relating to the
regulation of broadcasting or electronic communications, the
provisions of this
Act prevail”.
[90]
Msunduzi
above n
15 at para 11.
[91]
Emphasis added.
[92]
Section 22(2).
[93]
Section 24(1).
[94]
Section 24(1)(a).
[95]
Section 24(3).
[96]
Section 22(2) (the general provision), read with
sections 23-9 (the specific and “fairness” provisions
relating to
more particular matters) must be read together as
constituting a careful recognition and balancing of various
interests.
And, again, they are all of long-standing origin,
similar to provisions starting in 1911.
[97]
Johannesburg Municipality v Cohen’s Trustees
1909 TS
811
at 823 (
Johannesburg Municipality
) and
Stadsraad
van Pretoria v Van Wyk
1973 (2) SA 779
(A) at 784F-H (
Van Wyk
)
.
[98]
Willoughby’s Consolidated Co Ltd v
Copthall Stores Ltd
1913 AD 267
(
Willoughby’s
)
at 281 where Innes J stated that: “[t]here is nothing in
principle to prevent portion of the globular
dominium
of fixed property being transferred to
an individual for his life, instead of an adjoining property in
perpetuity”.
See also at 280:
“
I
say servitude rights advisedly, because, in order that notice of the
existence of prior rights should affect a purchaser of
land held
under unencumbered title, it is necessary that the rights should be
real, so that their delivery would take away something
from the
dominium
which
he is seeking to acquire.  And the rights now claimed, if they
are real, must necessarily be of the nature of a personal
servitude;
they are either that or they are not
jura
in rem
at all.”
[99]
LAWSA
above n 78
at para 540.
[100]
Badenhorst et al (ed)
Silberberg
and Schoeman’s The Law of Property
5 ed (LexisNexis Butterworths, Durban 2006) at 321.
[101]
Id.
[102]
Id.
[103]
Id at 321-2.
[104]
Id at 321.
[105]
Id at 321 and fn 5.
[106]
Id at 321.
[107]
A servitude or the power to exercise a servitude
may be created by statute.
LAWSA
above n 78 at para 615.  See also
South
African Mutual Life Assurance Society v Durban City Council
1948 (1) SA 1
(D). and
Baront
Investments (Pty) Ltd v West Dune Properties 296 (Pty) Ltd and
Others
2014 (6) SA 286 (KZP).
[108]
De Wet “Boekbesprekings” (1943) 187
THRHR
190.
[109]
Illuminating in this regard are the remarks of
Malan JA in
MTN
above n 9 at para 11:
“
These
services may be provided only by the holders of certain licences
(section 7).  The ECA granted the rights and privileges
that in
the past belonged to the fixed line operators, such as Telkom, to
all electronic communications network service licensees.
The
rights contained in
sections 70
to
77
of the
Telecommunications Act
came
to be re-enacted as
sections 22
to
29
of the ECA.  The
purpose of the older sections was to eliminate all possible
constraints on the state in its providing of
communication
services.  Due to the convergence of these services and the
introduction of competition in the telecommunications
industry the
rights and privileges that existed under the older sections now had
to be extended to persons other than the state
or the fixed line
operator.  Hence the enactment of
sections 22
to
29
of the
ECA.”
And at para 14:
“
The
powers given by
section 22
are, as I have said, required to enable
the providers of both fixed-line and wireless telecommunications
operators to achieve
their objectives.  It does not follow,
counsel for SMI countered, that these operators may appropriate
significant portions
of land on which to construct permanent or
semi-permanent installations as part of their networks.  This
is no doubt correct.
The power given by
section 22
is
understandable in the case of a fixed-line operator which would
otherwise have to negotiate with thousands of land owners
for
permission to erect telephone poles and suspend cables across their
land.  In [
Telkom
above
n 70] it was said:
‘
By
contrast, to lay cables on land would require permission or
servitudes from a huge number and variety of owners.  Hence
the
need for an all-embracing permission such as is contained in
section
70
[now
section 22].
’
The
same need does not exist with regard to sites required to build base
stations such as those of MTN and Vodacom.  The
phrase ‘due
regard must be had to applicable law’ did not appear in
section 70
of the repealed Act.  Stricter requirements than
before were thus introduced for the exercise of the powers now given
by
section 22(1).”
[110]
See Chapter 3 (“Licensing Framework”),
section 5 (“Licensing”), section 9 (“Application
and Granting
of Individual Licences”), and section 16 of the
Act which set out the process for granting individual and class
licences.
[111]
Willoughby’s
above n 98 at 281-2.
[112]
Hollman and Another v Estate Latre
1970
(3) SA 638
(A) (
Hollman
)
at 645D.
[113]
Motswagae
above
n 57 at para 14.
[114]
Id.  In
Anglo
Operations Ltd v Sandhurst Estates (Pty) Ltd
[2006] ZASCA 118
;
[2007] 2 All SA 567
(SCA) at para 21 the Court
stated that—
“
[i]n accordance with the principles
applicable to servitudes, the owner of a servient property is bound
to allow the holder to
do whatever is reasonably necessary for the
proper exercise of his rights.  The holder of the servitude is
in turn bound
to exercise his rights
civiliter
modo
, that is, reasonably viewed, with
as much possible consideration and with the least possible
inconvenience to the servient property
and its owner.”
[115]
See
LAWSA
above n 78 at para 552.
[116]
Linvestment CC v Hammersley and Another
[2008]
ZASCA 1
;
2008 (3) SA 283
(SCA) (
Linvestment
)
at paras 26 and 31-2.
[117]
Id at para 25.
[118]
Id at para 33.
[119]
Id at para 35.
[120]
Van Rensburg v Coetzee
1979
(4) SA 655
(AD) (
Van Rensburg
)
at 676H.
[121]
Id at 671H-672A.
[122]
Id at 672A-E.
[123]
Id at 677H.
[124]
Id at 676B
[125]
Id at 659E.
[126]
Id at 677C.
[127]
Id at 676A-D.
[128]
As envisioned in section 21(2)(b) of the Act.
[129]
Van Rensburg
above
n 120 at 676H-678.
[130]
Johannesburg Municipality
and
Van
Wyk
above
n 97
.
See also
Litako and Others v S
[2014] ZASCA 54
;
2015 (3) SA 287
(SCA)
at
para 52.
[131]
Minister of Defence and Military Veterans v
Thomas
[2015] ZACC 26
at paras 38-9.
[132]
MTN
above n 9 at
para 21.
[133]
Msunduzi
above n
15 at para 20.
[134]
See sections 6(2)(c), (h), and (i) of PAJA.
[135]
High Court judgment above n 81 at paras 41, 43
and 48.
[136]
Id at para 42.
[137]
Shoprite
above n
76 at para 73.  See also
Mkontwana
above n 36.
[138]
High Court judgment above n 81 at para 44.1.
[139]
Id at para 44.2.
[140]
Id at para 47.3.
[141]
Id.
[142]
Id.
[143]
Id.
[144]
See
FNB
above n 36 at paras 65-6 and
Shoprite
above n 76 at para 134.
[145]
Minority judgment at [7].