“Possession is nine-tenths of the law” (wise old idiom)
Optic fibre is bringing “superfast broadband” to an exponentially-increasing number of South African homes and businesses.
And competition in the field is fierce. Which is great for us as consumers, but if you live or work in a “community scheme” there’s a catch. How does your chosen supplier physically run fibre cabling to your individual properties?
Laying new underground ducting will mean a lot of cost and a lot of disruption, so you’ll want to use existing infrastructure if you can, and Telkom’s ducting is likely to be a prime candidate. But before you rush ahead and use it, consider this recent High Court decision which confirms that Telkom has the right to control who uses its ducting and other equipment … and who doesn’t.
Don’t touch me on my ducting
- Telkom had, during the initial development of a residential security estate, installed copper cables to individual houses via ducts and associated manholes.
- The Home Owners Association (HOA) was unable to agree with Telkom on the provision of fibre to the estate and gave the contract to Vodacom, which then asked Telkom for its consent to share its ducting system. A dispute arose as to whether or not Telkom was obliged to share its facilities, and this was referred to ICASA for resolution.
- Before ICASA had resolved the dispute, the HOA went ahead and allowed Vodacom to use Telkom’s ducting, with the result that Telkom applied to the High Court for a “spoliation order” restoring possession of its ducting to it.
- Long story short, the Court ordered that – pending resolution of the dispute by ICASA – the HOA had to restore possession of the ducting to Telkom, and Vodacom had to remove all its cabling and equipment.
The bottom line is that until the ICASA dispute is finalised (and, if an appeal is lodged against the Court’s decision, the outcome on appeal) we won’t know for certain the extent if any to which Telkom is obliged by law to share its ducting with other fibre suppliers, and if so under what conditions.
What we do know, for now at least, is that Telkom has been confirmed as being the legal “possessor” of such ducting despite it being installed on private land and irrespective of who has legal ownership. And since our law does not allow you to deprive a possessor of possession without consent or legal process, you need Telkom’s approval before you allow another supplier to use its ducting.
Importantly, the Court also confirmed that Telkom has a statutory right to demand access to the ducting, subject only to it exercising that right “respectfully and with due caution”.