Fibre optic company and municipality in trench war over ‘unlawful’ digging

2014-02-28 00:00

A TRENCH war has broken out in Pietermaritzburg over the right of companies to dig up the city’s pavements and roads to lay fibre optic cables without permission from the municipality.

The Msunduzi Municipality recently confiscated equipment from a company, 3Core Fibre, which then succeeded with a high court application to get its equipment back. The municipality then brought a counter-application, asking the court to grant an urgent interim interdict to stop Dark Fibre Africa, which had sub-contracted work to 3Core Fibre, from continuing with digging.

Yesterday, Acting Judge Piet Bezuidenhout refused the municipality’s application for an urgent interdict, adjourning the application until March 17 to give Dark Fibre Africa a chance to file an answering affidavit.

The judge also said in a separate judgment yesterday that municipal officials illegally took the law into their own hands when they confiscated equipment being used by the companies on February 15, and later threatened to also confiscate two of their vehicles unless their employees stopped work.

In these circumstances, he ruled, Msunduzi should pay the legal costs of the resulting court action, although the municipality agreed to return the equipment when the application came before court.

Judge Bezuidenhout said the municipality claimed it had not given Dark Fibre Africa authority to commence construction on municipal land.

It also submitted that the company’s conduct caused harm to the public, was unconstitutional and could cause damage in future.

Dark Fibre Africa’s stance is that it has an “absolute right” in terms of the Electronic Communications Act of 2005 to continue with its construction activities, without permission, but the municipality argued that this act applies to private and not public land, and that the municipality is responsible for the interests of its citizens.

The judge said it was in the interests of justice that the issues be decided after Dark Fibre Africa has responded.

Communications Minister Yunus Carrim, a Maritzburg resident, said according to the Electronic Communications Act, by-laws must be complied with.

The issue has resurrected a council hot potato — the controversial R1,2 billion broadband contract that was purportedly given to Pietermaritzburg Chamber of Business (PCB) president Paris Dlamini.

Msunduzi municipal manager Mxolisi Nkosi shared a letter with council on Wednesday, which he said took this project off the cards. The letter was from the Johannesburg City Council, saying it could not give Msunduzi permission to piggy-back on its project.

DA councillor Mergan Chetty, a staunch critic of the broadband tender, suggested that Msunduzi consider piggy-backing on the Dark Fibre Project. Nkosi said Dark Fibre was just one of seven companies wanting to lay fibre optic cables in the city and a policy was needed to control digging to protect residents and council infrastructure.

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