Msunduzi Municipality v Dark Fibre Africa (RF) (Pty) Limited

Dark Fibre Africa (the respondent) held Electronic Communications Network Services (ECNS) and Electronic Communications Network (ECN) licences issued by the Independent Communications Authority of South Africa under the Electronic Communications Act 36 of 2005 (ECA). In July 2012, the respondent notified Msunduzi Municipality (the appellant) of its intention to construct an underground fibre optic cable network along certain streets in Pietermaritzburg. Over 16 months, the respondent made numerous attempts to obtain the appellant's approval for construction implementation plans (wayleaves), which the appellant refused to grant. After advising the appellant on 9 September 2013 that it would proceed without approval, the respondent commenced construction on 12 November 2013. The appellant then brought an urgent application on 25 February 2014 for an interim interdict to stop construction, seeking final relief in the form of a declarator that the respondent had no entitlement to exercise powers under s 22 of the ECA without prior approval, or alternatively, a review and setting aside of the respondent's decision to exercise s 22 rights. The appellant had imposed a moratorium on wayleave requests in late 2012 but only communicated this to the respondent in December 2013, after construction had already commenced.

• Whether section 22 of the Electronic Communications Act 36 of 2005 requires consent or permission from a landowner (including state organs) before a licensee can exercise its rights to enter land and construct electronic communications networks
• Whether there is a distinction between private landowners and state organ landowners for purposes of section 22
• Whether the respondent's decision to commence construction without the appellant's approval constituted unlawful administrative action subject to review under PAJA
• Whether the respondent failed to have due regard to applicable law within the meaning of section 22(2) of the ECA
• Whether the respondent's failure to comply with the appellant's wayleave approval process gave rise to a legitimate expectation requiring compliance before commencing construction

The appeal was dismissed with costs, including the costs of two counsel.

Section 22(1) of the Electronic Communications Act 36 of 2005 specifically dispenses with the need for electronic communications network licensees to obtain the consent or permission of landowners before exercising their rights to enter upon land and construct electronic communications networks and facilities. This applies equally to land owned by private persons and land owned by organs of state, including municipalities. The reference in section 22(1)(a) to 'any land, including any street, road, footpath or land reserved for public purposes' expressly includes state-owned land within the scope of the provision. The requirement in section 22(2) to have 'due regard' to applicable law means that licensees must comply with applicable law when executing the works authorized under section 22(1), but such applicable law cannot be used to limit the very action that is authorized by section 22(1), namely the right to enter land and construct infrastructure without obtaining consent. A licensee's decision to exercise rights under section 22 constitutes administrative action and is subject to review under PAJA, but PAJA is exhaustive of the grounds for review and the legality principle is not available as a separate basis for challenge. A licensee's voluntary engagement with a landowner's wayleave approval processes does not create a legitimate expectation requiring the licensee to complete those processes before exercising its statutory rights under section 22, particularly where the licensee was not legally required to engage in such processes in the first place.

The court noted that although a public authority would be entitled to challenge the manner in which a licensee takes action contemplated in section 22 if it does not comply with 'applicable law', that was not the challenge raised in the present case. The proper procedure for a municipality to follow if a licensee fails to comply with applicable laws, standards, and procedures in executing works would be to seek a court order compelling compliance with such laws, rather than seeking to prevent the exercise of section 22 rights altogether. The court made a passing observation that it saw no reason to fear that an award of costs against the appellant might have a chilling effect on constitutional litigation, though this was not a central constitutional case. The court also observed that the appellant had taken a unilateral decision in late 2012 to impose a moratorium on new and pending wayleave requests but only communicated this to the respondent in December 2013 after construction had commenced, and counsel for the appellant conceded at the appeal hearing that no submissions could be made regarding the moratorium. The court noted that there was never going to be finality in respect of approval of wayleaves and settlement on conditions of implementation as the appellant had precluded itself from engagement with the respondent through its moratorium.

This case provides important clarification on the interpretation and application of section 22 of the Electronic Communications Act 36 of 2005. It confirms that telecommunications licensees do not require the consent of landowners, including municipalities and other organs of state, before exercising their statutory rights to enter land and construct electronic communications infrastructure. This is crucial for the rollout of telecommunications infrastructure in South Africa, preventing landowners (whether private or public) from blocking or unduly delaying such development. The judgment clarifies the relationship between the statutory powers granted to licensees and the requirement to comply with 'applicable law', establishing that while licensees must comply with applicable laws in executing their work, such laws cannot be used to negate the very rights granted by section 22(1). The case also confirms that decisions by licensees to exercise section 22 rights constitute administrative action subject to review under PAJA, but emphasizes that PAJA is exhaustive of the grounds for review and that the legality principle is not available as a separate basis for challenge. The decision is significant for the balance it strikes between facilitating essential telecommunications infrastructure development and ensuring compliance with applicable regulatory frameworks, while limiting the ability of landowners (particularly municipalities) to impose conditions that would effectively constitute a consent requirement contrary to the statutory scheme.