Telkom SA Limited v The Member of the Executive Council for Agricultural and Environmental Affairs: KwaZulu-Natal and Others

Telkom SA Limited, the fixed-line telecommunications operator, sought to lay an undersea telecommunications cable on the seabed within the territorial waters off the coast of KwaZulu-Natal to connect South Africa’s national telecommunications system to an international undersea cable. Telkom contended that it was entitled to do so without obtaining a lease under the Sea-shore Act 21 of 1935, relying instead on section 70 of the Telecommunications Act 103 of 1996. The Member of the Executive Council for Agricultural and Environmental Affairs (KwaZulu-Natal), as the competent authority under the Sea-shore Act, and the Prawn Fisheries and Development Association opposed this stance. The fifth respondent argued that the chosen cable route adversely affected prawn fishing activities and that affected parties had not been adequately consulted. The Durban High Court declared that it was unlawful to lay the cable without a lease under the Sea-shore Act, and Telkom appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel for the first respondent. The High Court’s declaration that a lease under the Sea-shore Act is required was confirmed.

This case is a leading authority on the interpretation of telecommunications legislation in relation to maritime and environmental regulation. It affirms the primacy of the Sea-shore Act in governing activities on the seabed within territorial waters and clarifies that statutory powers to enter upon and construct on 'land' do not extend to the seabed. The judgment underscores the importance of contextual and historical statutory interpretation and reinforces state control over marine and environmental resources.