IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA (HELD IN BRAAMFONTEIN)
CASE NO: CCT184/14
In the application of:
DARK FIBRE AFRICA (PTY) LIMITED Applicant and
CITY OF TSHWANE METROPOLITAN MUNICIPALITY First Respondent LINK AFRICA (PTY) LIMITED Second Respondent MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT Third Respondent
MINISTER OF COMMUNICATIONS Fourth Respondent MSUNDUZI MUNICIPALITY Fifth Respondent
In re:
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
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FOUNDING AFFIDAVIT
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I, the undersigned,
JOHANNES VAN DEVENTER
do hereby make oath and state that:
1 I am the Executive: Legal and Corporate Affairs of Dark Fibre Africa (Pty) Limited (“DFA”), the applicant in this application. I am duly authorised to bring this application, and to depose to this affidavit, on behalf of DFA.
2 The facts contained herein are, unless otherwise stated or indicated by the context, within my personal knowledge and are, to the best of my belief, true and correct. Where I make legal submissions, I do so on the basis of the advice that I have received from DFA’s legal representatives.
3 In this application, DFA seeks the leave of this Court to intervene, in terms of Rule 8 of the Rules of this Court (“the Rules”), as a respondent in the main proceedings under case number CCT 184/14, which are detailed further below. For the reasons set out below, I respectfully submit that DFA has a direct and substantial interest in the main proceedings, and that it would be in the interests of justice for DFA to be granted leave to intervene as a respondent therein.
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THE MAIN PROCEEDINGS
4 The main proceedings arise from an application by City of Tshwane Metropolitan Municipality (“Tshwane Municipality”) to prevent Link Africa (Pty) Limited (“Link Africa”) from constructing and developing a fibre-optic electronic communications network in the City of Tshwane. That application was dismissed by the North Gauteng High Court in a judgment dated 18 March 2004, and, on 25 September 2014, the Supreme Court of Appeal (“SCA”) dismissed Tshwane Municipality’s application for special leave to appeal to it against the High Court judgment.
5 Tshwane subsequently applied for leave to appeal to this Court under case number CCT184/14 on 16 October 2014. In its notice of motion, Tshwane Municipality seeks the following substantive relief (inter alia) from this Court in the event that its application for leave to appeal is granted:
“4.3 declaring that Chapter 4 of the ECA, in particular sections 22 and 24 thereof, confers no right on the first respondent, by reason only of being a holder of an electronic communications network service license, without the lawful consent or agreement of the applicant or due and demonstrable regard to the rights of the applicant and other stakeholders to participate in a fair, equitable, transparent, competitive and cost-effective process for the right of use of the applicant’s capital assets.
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(a) to enter upon any land, including any street and/or road and/or footpath and/or land reserved for public use, and any railway and any waterway and/or any existing service ducts, sewerage and storm-water infrastructure within the applicant’s municipal area;
(b) to construct or install or maintain any electronic communications facility or electronic communications network upon and/or under and/or over and/or along and/or across and/or beneath any land, including any street and/or road and/or footpath and/or land reserved for public purposes, and/or any railway and/or any waterway and/or any existing service ducts, sewerage and storm-water infrastructure within the applicant’s municipal area; and
(c) to attach any wires or cables or stays or any other kind of support for the installation of its electronic communications facility or electronic communications network to any building or other structure within the applicant’s municipal area.
4.4 declaring that such lawful consent or agreement is implicit in sections 22 and 23 of the ECA, and that due regard to the rights and obligations of the applicant and other stakeholders to participate in a fair, equitable, transparent, competitive and cost- effective process for the right of use of the applicant’s capital assets are a necessary, reasonable and justifiable limitation to the exercise of any right pursuant to sections 22 and/or 24 of the ECA;
4.5 declaring further that a construction of Chapter 4 of the ECA, or any provision therein, that is contrary to that contended for in
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paragraphs 4.3 and 4.4 above would have the effect of promoting arbitrary deprivation of property in contravention of sections 25(1) and 217(1) of the Constitution;
4.6 declaring further that by entering upon any land, including any street or road or footpath or land reserved for public use, and any railway and any waterway and any existing service ducts, sewerage and storm-water infrastructure within the applicant’s municipal area, and there construct or install or maintain any electronic communications facility or electronic communications network without the lawful consent or agreement of the applicant, and without due and demonstrable regard to the rights and obligations of the applicant and other stakeholders to participate in a fair, equitable, transparent, competitive and cost-effective process for the right of use of the applicant’s capital assets, the first respondent acts unlawfully and unconstitutionally;
4.7 declaring that there exists no lawful and/or binding and/or enforceable agreement between the parties permitting the first respondent to conduct itself in the manner described in paragraph 4.3 above;
4.8 in the alternative, and only where it should be found that Chapter 4 of the ECA (and in particular sections 22 and 24 of the ECA) is incapable of the construction contended for in paragraphs 4.3 and 4.4 above, declaring that sections 22 and 24 of the ECA are inconsistent with the Constitution;
4.9 in the event of a declaration of constitutional invalidity of sections 22 and 24 of the ECA, suspending such declaration for a period of 18 months to allow Parliament to remedy the defect….”
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6 In essence, therefore, Tshwane Municipality seeks the following relief (inter alia) from this Court:
6.1 a declarator that sections 22 and 24 of the ECA confer no rights on the holder of an Electronic Communications Network Services (“ECNS”) licence under the ECA to exercise its rights thereunder within the jurisdiction of a municipality without the consent or agreement of that municipality;
6.2 insofar as sections 22 and 24 of the ECA do not bear the above construction, a declarator that they “have the effect of promoting arbitrary deprivation of property in contravention of sections 25(1) and 217(1) of the Constitution”, and are accordingly unconstitutional.
7 On 9 February 2015, this Court issued directions in the present proceedings setting down Tshwane Municipality’s application for hearing on 12 May 2015 and also providing a timetable for the process to be followed by the parties in the main proceedings. A copy of this Court’s directions are, for the sake of convenience, attached hereto marked
“JVD1”.
8 As appears from paragraph 5 of this Court’s directions, the Chief Justice directed that they also be provided to the parties in the completed matter of Msunduzi Municipality v Dark Fibre Africa (RF) (Pty) Limited before
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this Court under case number CCT195/14 (the “Msunduzi case”) “on the basis that these matters raise related issues”.
9 DFA was the respondent in the Msunduzi case, and accordingly received a copy of this Court’s directions on 10 February 2015.
10 For the reasons set out below, DFA respectfully agrees that the main proceedings raise “related issues” to those in case number CCT 195/14 (notwithstanding that those proceedings have themselves been finalized), particularly insofar as the proper interpretation, and constitutional validity, of sections 22 and 24 of the ECA are concerned. It is for that reason that DFA has instituted the present application for leave to intervene as a respondent in the main proceedings.
THE MSUNDUZI CASE
11 The Msunduzi case arose from a decision by DFA during November 2013 to exercise its rights under section 22 of the ECA to construct a fibre-optic network within the jurisdiction of Msunduzi Municipality. In February 2014, Msunduzi Municipality instituted legal proceedings against DFA in the High Court (KwaZulu-Natal Division, Pietermaritzburg) for interim and final relief preventing DFA from continuing with its construction activities on the grounds that DFA’s exercise of its rights under section 22 was unlawful.
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12 Msunduzi Municipality’s interim relief application was heard and dismissed by the High Court (KwaZulu-Natal Division, Pietermarizburg) in April 2014. Msunduzi Municipality appealed against that decision to the SCA, and its appeal was likewise dismissed by the SCA on 1 October 2014 (see Msunduzi Municipality v Dark Fibre Africa (RF) (Pty) Limited [2014] ZASCA 165 (1 October 2014)).
13 In its judgment in the Msunduzi matter, the SCA confirmed its ruling in Mobile Telephone Networks (Pty) Ltd v SMI Trading CC 2012 (6) SA 638 (SCA) (“MTN”), that a licensee does not require the consent of a landowner in order to exercise its rights under section 22 of the ECA.
The SCA furthermore rejected an argument by Msunduzi Municipality that there should be a distinction between private and state organ landowners in this regard. The SCA held that there is no scope for any such distinction in the interpretation of section 22, and accordingly that, even where the relevant landowner is a public authority, a licensee does not require that landowner’s consent in order to exercise its rights under section 22.
14 Msunduzi Municipality then sought leave to appeal against the SCA’s judgment to this Court under case number CCT195/14, and that application was dismissed by this Court on 3 November 2014, as reflected in this Court’s order attached hereto marked “JVD2”.
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15 Notwithstanding that the proceedings between Msunduzi Municipality and DFA are now completed, and this Court is functus officio in respect of that matter, DFA still has an ongoing interest in the proper interpretation, and constitutional validity, of section 22 of the ECA for the reasons set out below.
DFA’S INTEREST IN THE MAIN PROCEEDINGS
16 As set out above, the relief sought by Tshwane Municipality in the main proceedings includes:
16.1 a declarator that sections 22 and 24 of the ECA confer no rights on the holder of an ECNS licence to exercise its rights thereunder within the jurisdiction of a municipality without the consent or agreement of that municipality;
16.2 insofar as sections 22 and 24 of the ECA do not bear the above construction, a declarator that they are unconstitutional.
17 It is respectully submitted that DFA has a direct and substantial interest in this relief for the following reasons.
18 DFA is a leading provider in South Africa of fibre-optic cable networks, including the laying of underground ducts containing fibre-optic cables.
In particular, DFA’s business includes:
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18.1 Constructing fibre-optic cable networks by laying underground ducts containing fibre-optic cables upon, under, along and/or across streets and roads;
18.2 Selling and/or leasing fibre-optic cables, or individual parts thereof, to third parties licensed to render Electronic Communications Services (“ECS”) services in terms of the ECA;
18.3 Leasing space in fibre-optic cable ducts to third parties which are licensed to render ECNS services in terms of the ECA; and
18.4 Maintaining the leased and sold fibre-optic cables.
19 The business of DFA is thus similar to that of Link Africa, the first respondent in the main proceedings. However, DFA, unlike Link Africa, does not utilize municipal sewers for the laying of fibre-optic cables. DFA only installs its underground fibre optic network in trenches excavated by itself. .
20 DFA’s fibre-optic network is utilized by state-owned enterprises, mobile operators and internet servicer providers country-wide.
21 DFA is duly licensed to conduct its business, holding both an ECNS licence and an ECS licence under the ECA.
22 There is a severe lack of electronic communication facilities in South Africa, and the need to construct electronic communications networks of
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the sort provided by DFA has been declared an urgent priority by Government.
23 In this regard, I refer first to the Government’s National Development Plan (“NDP”), the relevant pages of which are attached hereto marked
“JVD3”. As appears therefrom, Chapter 4 of the NDP records and states, inter alia, that the State’s primary role in the ICT (Information and Communications Technology) sector is to facilitate competition and private investment in order to extend the ICT infrastructure nationally and thereby narrow the “digital divide”.
24 Consequently, on 24 January 2014, the Department of Communications published a National Integrated ICT Policy Green Paper. In that Paper, the Department states that active participation by business is required in order to contribute to shaping a new integrated ICT policy relevant to the country’s needs. The Green Paper furthermore emphasizes that rapid deployment of ICT infrastructure is required in South Africa for this purpose. The relevant pages of the Green Paper are attached hereto marked “JVD4”).
25 Pursuant to these governmental imperatives, DFA has developed an existing fibre-optic network In South Africa of 8303 kilometres, of which 7075 are in metropolitan areas, and 1228 are longhaul.
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26 Notwithstanding the completion of its proceedings with Msunduzi Municipality (as referred to above), DFA has a direct and substantial interest in the main proceedings primarily because it is engaged in the ongoing rollout of fibre-optic networks in various areas around South Africa, mostly municipal areas.
27 For instance, during the financial year 1 April 2015 to 30 March 2016, DFA plans to construct almost 837 kilometres of fibre-optic cables around South Africa. Approximately 94% of this rollout will take place on municipal land pursuant to DFA’s exercise of its statutory rights under section 22 of the ECA.
28 The proper interpretation, and constitutional validity, of sections 22 and 24 are critical to the ability of DFA to conduct its business, and to do so within the time periods in order to meet the Government’s rollout objectives. Both of these imperatives will be fundamentally comprised in the event that section 22 and/or section 24 of the ECA is (i) interpreted as requiring a licensee such as DFA to obtain the consent of a municipality (or other public organ landowner) before it may exercise its rights under that section, or (ii) is declared to be unconstitutional, as Tshwane Municipality seeks.
29 As the SCA explained in MTN, the governmental imperative of rapid rollout of electronic communications network services is reflected in section 22 which empowers a licensee to exercise its rights in terms of
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that section without any requirement of landowner consent (see, in particular, paras 12-15). The same principles apply to section 24 of the ECA.
30 It would be practically impossible, and would defeat the above imperative, were constructors of cable networks required to secure the permission of each of the huge number of landowners, including municipalities, over whose land it is necessary to construct such networks.
31 For these reasons, it is submitted that DFA has a direct and substantial interest in the main proceedings insofar as the proper interpretation, and constitutional validity, of sections 22 and 24 of the ECA are concerned.
EVIDENCE AND SUBMISSIONS ON SECTIONS 22 AND 24 OF THE ECA
32 The evidence that DFA seeks to place before this Court, and the submissions that it wishes to make, as an intervening party in the main proceedings, are limited to those relating the proper interpretation and constitutionality of sections 22 and 24 of the ECA.
33 The only evidence that DFA seeks to place before this Court in the above regard are the facts contained in this present affidavit, and the submissions that it seeks to make are outlined below.
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34 In terms of section 2 of the ECA, the “[t]he primary object of this Act is to provide for the regulation of electronic communications in the Republic in the public interest”.
35 Chapter 4 then proceeds to grant various rights to ECNS licensees to allow them to construct and install electronic communications networks on an expedited basis.
36 For instance, section 21 requires the development of guidelines for “the rapid deployment and provisioning of electronic communications facilities” in South Africa, in recognition of “the public interest in the rapid rollout of electronic communications networks and electronic communications facilities”.
37 Section 22 then provides as follows:
“22 Entry upon and construction of lines across land and waterways
(1) An electronic communications network service licensee may-
(a) enter upon any land, including any street, road, footpath or land reserved for public purposes, any railway and any waterway of the Republic;
(b) construct and maintain an electronic communications network or electronic communications facilities upon, under, over, along or across any land, including any street, road, footpath
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or land reserved for public purpose, any railway and any waterway of the Republic; and
(c) alter or remove its electronic communications network or electronic communications facilities, and may for that purpose attach wires, stays or any other kind of support to any building or other structure.
(2) In taking any action in terms of subsection (1), due regard must be had to applicable law and the environmental policy of the Republic.”
38 As the SCA explained in Mobile Telephone Networks (Pty) Ltd v SMI Trading CC 2012 (6) SA 638 (SCA) (“MTN”), section 22 draws a clear distinction between the decision of a licensee to exercise its powers under section 22 of the ECA, on the one hand, and, on the other, the manner in which the licensee executes any works it undertakes pursuant to that decision.
39 As regards the former, the decision by a licensee to exercise its powers under section 22(1) of the ECA amounts to “administrative action” for purposes of the Promotion of Administrative Justice Act, 3 of 2000 (“PAJA”), and is therefore subject to review under that Act insofar as it was not taken lawfully, reasonably and procedurally fairly (see MTN, paras 21, 24 and 35).
40 However, the SCA expressly rejected the argument that the consent of a landowner is required for the exercise of the rights provided for in section
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22(1) or that the “applicable law” obligation in section 22(2) could be used to achieve that outcome. As the SCA explained (at para 15):
“the reason for the powers given by s 22(1) would fall away if consent of the owner were to be a requirement. Section 22(1) specifically dispenses with the need to obtain the owner's consent. . . . The words 'with due regard' generally mean 'with proper consideration' and, in the context, impose a duty on the licensee to consider and submit to the applicable law. This duty arises only when the licensee is engaged 'in taking any action in terms of subsection (1)': the 'action' referred to by s 22(1) is entering, constructing and maintaining, altering and removing.
These actions are authorised. It is 'in their taking' that due regard must be had to the applicable law. A fortiori the 'applicable law' cannot limit the very action that is authorised by s 22(1).”
(my emphasis)
41 Thus, the decision of a licensee to exercise its powers under section 22 does not require the consent of the landowner, but is subject to challenge as “administrative action” under PAJA. On the other hand, the manner in which the licensee executes its works pursuant to such a decision is subject to “applicable law” in terms of section 22(1) insofar as that law does not require the consent of the landowner.
42 In Msunduzi, the SCA confirmed this distinction in paragraph 11 to 13 of its judgment. The SCA also held that there is no distinction between private and state organ landowners in this regard. Hence, even where
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the relevant landowner is a public authority, a licensee does not require that landowner’s consent in order to exercise its rights under section 22.
43 As the SCA stated in paragraph 13 of its judgment in the present proceedings, there is no basis for such a distinction in the wording of section 22. That section expressly applies to “any land, including any street, road, footpath or land reserved for public purposes” (our emphasis). There is accordingly simply no scope for the differential treatment of landowners which are organs of state from those which are not.
44 There is also no basis for the proposed distinction from a policy perspective. The complications and delay that would arise from having to seek consent from each landowner over whose land it is necessary to construct an electronic communications network are precisely the same whether the landowner in question is an organ of state or not (see in this regard, MTN, para 14).
45 As the SCA pointed out in MTN at para 15, the safeguard provided by section 22(2) of the ECA is more than sufficient to address any concerns that a municipality may have regarding health and safety and other such related concerns, and does not require any imputation of consent for the activities permitted in terms of section 22(1) of the ECA. It should be noted that DFA, as a matter of policy, engages all landowners, including municipalities prior to entering upon private or public land for the
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construction and installation of fibre optic cables. The purpose of the engagement is to advise the landowner of the proposed work and to facilitate co-operation between the parties during construction. The process of engagement commences with a formal letter, a pro-forma of which is attached as “JVD5”.
46 In order, therefore, for a municipality to challenge a licensee’s exercise of its section 22 rights, it must demonstrate that the licensee has contravened the provisions of PAJA in deciding to exercise such powers, which does not (and cannot) have as a jurisdictional prerequisite the consent of the landowner.
47 Sections 23 to 25 similarly contain provisions designed to achieve the rapid rollout of electronic communications network services, including by way of underground pipes and pipes under streets. Those sections also expressly refer to the role of local authorities in the construction of electronic communication network facilities and services. For example, section 24 provides that an electronic communications network service licensee may, after providing notice “to the local authority or person owning or responsible for the care and maintenance of any street, road or footpath”, “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”.
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48 It is furthermore clear that no consent is required from a local authority landowner in terms of section 24 (or in sections 23 or 25) for any such construction and maintenance activities by the licensee.
49 It would be wholly anomalous, in the circumstances, were such an obligation to be imputed into section 22 by inference.
50 There is, moreover, no basis for contending that, on this clear meaning, sections 22 and 24 are unconstitutional on the grounds they would have the effect of promoting an arbitrary deprivation of property in contravention of sections 25(1) and 217(1) of the Constitution.
51 Firstly, there is no basis for concluding that the objects of the ECA (and in particular sections 22 and 24) cannot be achieved without depriving a landowner (municipal or otherwise) of its property. For instance, it has not been contended (nor could it) that there is any deprivation of property involved in the metropolitan network rollout activities of DFA.
52 Secondly, there is no basis for concluding that any such deprivation of property would be arbitrary within the meaning of section 25(1), i.e., both procedurally and substantively unfair. As Plasket AJA observed in MTN, at para 35, section 22 is protected from constitutional challenge because it constitutes administrative action within the meaning of PAJA, and hence can only validly be exercised in accordance with administrative
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law rights, including those of procedural fairness. The same considerations apply to section 24 of the ECA.
INTERESTS OF JUSTICE
53 For all the reasons set out above, It is submitted that it would be in the interests of justice for DFA to be granted leave to intervene as a respondent in the main proceedings.
54 Not only does DFA have a direct and substantial interest in the main proceedings as set out above, but, as a leading provider of fibre-optic cable networks in South Africa, it is in a position to provide a broader industry perspective on the proper interpretation of sections 22 and 24 of the ECA which is not narrowly tied to the specific facts of this case. For example, DFA is differently positioned to Link Africa in that, inter alia, DFA does not use municipal sewers for the laying of fibre-optic cables, whereas Link Africa does.
55 DFA was also directly involved in the Msunduzi case referred to above, which represents the current law on the proper interpretation of section 22, and in respect of which leave to appeal was dismissed by this Court.
As noted in paragraph 5 of the Chief Justice’s directions in this matter dated 9 February 2015 (annexure “JVD1” hereto), the main proceedings
“raise related issues” to those in the completed Msunduzi proceedings.
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56 I furthermore emphasise that the evidence that DFA seeks to place before this Court, and the submissions that it wishes to make, as an intervening party in the main proceedings, are limited to those relating to the proper interpretation and constitutionality of sections 22 and 24 of the ECA. Furthermore, the only factual evidence is limited to that contained in the present affidavit. .
57 I am furthermore advised that counsel for DFA will be in a position to file written submissions within the time period directed by the Chief Justice on 9 February 2014, for the filing of written argument by the respondents in the present proceedings, namely on or before 2 April 2015.
58 Hence, there will be no delay occasioned to the hearing of this matter in the event that DFA is granted leave to intervene as a respondent in the main proceedings.
59 In the above circumstances, I also do not expect that any of the other parties to the main proceedings will object to the intervention of DFA therein.
CONCLUSION
60 In the circumstances, I respectfully request the Court to grant leave to DFA to intervene as a respondent in the main proceedings in terms of Rule 8 of the Rules of this Court, in accordance with the relief sought in the notice of motion to which this affidavit is attached.
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DEPONENT
I certify that the Deponent has acknowledged that he knows and understands the contents of this declaration. This declaration was sworn to before me and after the Deponent had answered to the prescribed questions and the Deponent’s signature was placed thereon in my presence at
on this day of MARCH 2015.
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COMMISSIONER OF OATHS
