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

Telkom SA Limited (the appellant), a fixed-line telecommunications operator, sought to lay an undersea telecommunications cable on the seabed in the territorial waters off the coast of KwaZulu-Natal. The cable was essential to link the national telecommunications system to an international undersea telecommunications cable network recently installed at considerable cost. The cable was to connect the international cable to an on-shore installation at Mtunzini. The First Respondent (the Member of the Executive Council for Agriculture and Environmental Affairs: KwaZulu-Natal) contended that Telkom required a lease under section 3(1)(m) of the Sea-shore Act, 21 of 1935 before laying the cable. The Fifth Respondent (The Prawn Fisheries and Development Association) objected on grounds that the cable route crossed a major prawn fishing ground and would create a 500-metre restricted zone on either side of the cable, substantially disrupting fishing operations. Telkom argued that section 70 of the Telecommunications Act, 103 of 1996 empowered it to lay the cable without obtaining a lease. The High Court at Durban (Hugo J) declared it unlawful for the cable to be laid until the area of the seabed had been leased to Telkom in terms of section 3 of the Sea-shore Act. By the time of the appeal, the cable had already been laid.

• Whether section 70 of the Telecommunications Act, 103 of 1996 empowers a fixed-line operator to lay a submarine telecommunications cable in territorial waters without obtaining a lease under the Sea-shore Act, 21 of 1935
• Whether the word 'land' in section 70 of the Telecommunications Act includes the seabed in territorial waters
• Whether section 70 of the Telecommunications Act is a re-enactment of section 80 of the Post Office Act, 1958, and thus exempted from the Sea-shore Act by virtue of section 13(e) of that Act
• The proper interpretation of telecommunications legislation in historical context and its relationship to the Sea-shore Act

The appeal was dismissed with costs, including costs of two counsel for the first respondent. The High Court's declaratory order was upheld, confirming that it is unlawful for undersea telecommunications cables to be laid off the coast of KwaZulu-Natal until the area of the seabed to be occupied by the cable has been leased in terms of section 3 of the Sea-shore Act, 21 of 1935.

Section 70 of the Telecommunications Act, 103 of 1996 does not empower a fixed-line telecommunications operator to lay a submarine cable on the seabed in territorial waters without first obtaining a lease under section 3 of the Sea-shore Act, 21 of 1935. The word 'land' in section 70, interpreted in its ordinary meaning and in the context of the section's purpose and legislative history, does not include the seabed in territorial waters. The lowering of a cable to the seabed from a vessel does not constitute 'entry upon land' as contemplated by section 70. The legislative evolution of telecommunications statutes, particularly the removal in 1976 of the Postmaster-General's power to construct (as opposed to merely transmit) in territorial waters, confirms that regulation of undersea cable-laying falls exclusively under the Sea-shore Act.

The Court made several non-binding observations: (1) That whatever telecommunications cables were laid in territorial waters in the past ought to have been laid either pursuant to pre-1976 telecommunications legislation (if it indeed gave such power) or pursuant to compliance with the Sea-shore Act, though there was no evidence as to what course was actually taken. (2) That while 'land in the sea' might include land close enough to the sea-shore to be reclaimable, this does not extend to the seabed anywhere in the 12 nautical miles of territorial waters. (3) That the 1976 introduction of the words 'Subject to the provisions of any other Act of Parliament' in section 78 of the Post Office Act was not a mistake, but rather reflected the legislative intention to limit the Postmaster-General's power in territorial waters to transmission only, not construction. (4) That the appellant's interpretation would empower multiple fixed-line operators to lay undersea cables without regulation, which would be inconsistent with the State's historical exercise of control over marine operations. (5) The Court noted in passing that television arrived in South Africa in 1976, introduced 'almost surreptitiously' through an insertion in section 78 with no mention in the long title of the amending Act.

This case is significant in South African law for clarifying the regulatory framework governing undersea telecommunications infrastructure. It establishes that telecommunications operators, despite their statutory powers under the Telecommunications Act, remain subject to the Sea-shore Act when laying cables in territorial waters. The judgment demonstrates the importance of statutory interpretation informed by legislative history and context. It confirms the State's continued control over marine and submarine operations through the Sea-shore Act's leasing regime, which includes consultation procedures and opportunities for affected parties to object. The case balances the national interest in telecommunications infrastructure with environmental and economic interests (such as fishing) through a structured regulatory process. It exemplifies how courts interpret successive re-enactments of legislation and apply principles of statutory interpretation, including purposive interpretation and consideration of legislative context. The judgment also illustrates the limits of broad statutory powers granted to service providers when those powers conflict with specialized regulatory regimes governing specific resources or areas.