Unpermitted work gets nod

2014-04-15 00:00

A NATIONAL electronic communications network company, Dark Fibre Africa (RF) Pty Ltd, has been given the go ahead to continue with the installation of an optic fibre cable network in the city without permission from Msunduzi Municipality.

This is in terms of a reserved judgment by Judge Esther Steyn, who yesterday dismissed Msunduzi Municipality’s application for an interim interdict against Dark Fibre Africa.

The municipality approached the Pietermaritzburg high court in February for an interdict to stop Dark Fibre Africa from continuing all construction on its property pending the finalisation of an application for a court review of the company’s conduct.

However, in her judgment yesterday, Judge Steyn expressed the opinion that a review application will have limited prospects of succeeding.

She also ruled the municipality had not made out a case for an interim interdict being granted against Dark Fibre Africa.

The municipality had alleged that Dark Fibre Africa’s construction work was illegal because the company failed to get the municipality’s permission and didn’t adhere to certain stipulated conditions.

The stance taken by Dark Fibre Africa was that it had an absolute right under licences issued in terms of the Electronic Communications Act (ECA) of 2005 to carry out construction on public and private land and that it didn’t need the municipality’s permission.

This is in terms of a judgment given in 2012 by the Supreme Court of Appeals in favour of Mobile Telephone Networks (Pty) Ltd (MTN).

Judge Steyn said in her judgment she is bound by the MTN ruling and agreed that in terms of the ECA, Dark Fibre Africa did not need the municipality’s permission.

According to the judgment, Dark Fibre Africa had been involved in a process of negotiating the approval of wayleave permits (contractual licences giving permission to maintain and repair a network on someone else’s land) since 2012.

The company admittedly, however, commenced construction in November 2013 without the applications being approved, and without complying with the standard conditions stipulated by the municipality aimed, among other things, at regulating health and safety issues, and traffic control.

Judge Steyn said it was argued on behalf of the municipality that even if permission wasn’t required in terms of the ECA, the wayleave permits were designed to safeguard the interests of the public. In terms of a municipal circular, however, it was clear that the municipality had put a moratorium on wayleave permits being issued from January 1, 2013.

She said this begged the question whether any negotiations conducted after the moratorium could have been in good faith.

Msunduzi Municipality’s legal adviser, Johan van der Merwe, said after the case the municipality would study the judgment before commenting.

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