Live in an Estate? Do You Have The Freedom To Choose Your Own Fibre Provider?

In these modern times having access to the internet is no longer seen as a luxury, it is a necessity. With the advent of fibre optic cables (which are able to carry a lot more data than copper cables and provide faster, more reliable, affordable connectivity for multiple devices) and more competition for internet service providers than ever before – consumers can now choose the best fibre network for the job.

This should include residents in residential estates…but does it?

In a recent appeal matter (heard by the Supreme Court of Appeal in Dennegeur Estate Home Owners Association and Vodacom (Pty) Ltd v Telkom SA SOC Ltd) the court had to determine whether a fibre network service provider (Vodacom) could access the ducts constructed on and under a residential estate to install its fibre network, where the ducts were already occupied by cables of another service provider (Telkom).

The facts of the matter are as follows:

• Copper cables for communication were installed by Telkom, approximately 18 years ago, into underground ducts and sleeves in the Dennegeur Residential Estate.

• The cables were used to provide telephone and later ADSL services to the residents of the estate.

• All parties were in agreement that the duct infrastructure belonged to the Home Owners Association of Dennegeur Estate (hereafter referred to as the Home Owners Association).

• In 2016, the Home Owners Association entered into an agreement with Vodacom for the service provider to install its fibre network in the estate.

• Vodacom installed its fibre network in the same ducts and sleeves next to Telkom’s copper cables.

An act of spoliation?

Telkom alleged that Vodacom committed an act of spoliation by installing their cables into the existing ducts – subsequently taking action against Vodacom in the High Court.

An act of spoliation is when someone unlawfully (without following the correct legal procedure) dispossesses another of goods where that person enjoyed undisturbed possession thereof.)

Telkom claimed the return of its undisturbed possession of the infrastructure in terms of the Mandament van Spolie (a legal remedy against a person who has committed an act of spoliation).

Telkom’s argument was that they had exclusive rights to the duct infrastructure, including the vacant unused space within the ducts in terms of Section 22 of the Electronic Communications Act.

Telkom also alleged that they may in future wish to utilise the unused space within the duct infrastructure to install their own fibre optic cables.

The High Court Judgement

The High Court ruled in favour of Telkom and upheld their claim for the return of its undisturbed possession of the infrastructure in terms of the Mandament van Spolie case.  

The court further held that the installation by a competitor service provider (of cables in the same infrastructure) is a deprivation of the occupant’s exclusive possession and Vodacom was ordered to remove its fibre cables and restore the possession of the underground ducts, sleeves, manholes and copper cables to Telkom.

The result of the High Court’s decision was that any service provider that wished to install its fibre network in an estate that already had copper or fibre (notwithstanding the fact that the existing infrastructure could accommodate the competitor’s cables) would be required to dig new trenches and lay new ducts.

Considering the fact that residential estates would wish to avoid the unnecessary disruption of construction in the estate, residents in an estate would be left with no option apart from the existing network provider.

Supreme Court of Appeal Judgement

Vodacom appealed against the decision of the High Court at the Supreme Court of Appeal.

They argued that possession, as envisaged by the Mandament van Spolie case, was not present as Telkom’s access to the ducts was at the Home Owners Association’s sufferance.  Vodacom further argued that Telkom was not deprived of possession as they did not make use of those parts of the duct infrastructure where Vodacom inserted its cables, accordingly Vodacom’s cables did not interfere with Telkom’s use of its copper cables.

The SCA upheld the appeal by Vodacom and the court decided that despite the fact that Telkom may have accessed the duct infrastructure and manholes for its own benefit, it was common cause that the infrastructure formed an essential part of the immovable property which was owned, occupied and controlled by the Home Owners Association.

The Court further held that Telkom was not in physical possession of the infrastructure of its cables. Stating that Telkom did not lose possession of anything and that Telkom’s actual use of the ducts, cables and its service to its customers remain undisturbed.

Vodacom’s conduct was therefore not an act of spoliation.

This is an important judgement for consumers in a residential estate as it provides them with the freedom to choose the best internet service provider for their needs.  Provided that there is sufficient space in the existing infrastructure owned by an estate, the estate may enter into an agreement with any preferred fibre network provider to install its fibre network in the duct infrastructure.