South Africa’s telecommunications giants in bitter court battle over the laying of fibreoptic cables
A ground-breaking judgment that could speed up the provision of fibre internet to residents in complexes and estates is hanging in the balance following a fight-back from Telkom.
Telkom last week obtained an urgent interdict against Vodacom in the Pretoria High Court, preventing Vodacom from using Telkom’s underground ducts for fibreoptic connections.
The latest development comes after the Supreme Court of Appeal (SCA) last month found in Vodacom’s favour, and ruled that Telkom did not have exclusive rights to infrastructure just because it arrived first.
Vodacom called the judgment ground-breaking.
In most complexes and estates, Telkom has existing copper cables, which would mean that people living there would not be able to use a fibre service provider other than Telkom without digging up their gardens, roads and properties, the City of Cape Town, which was admitted as a friend of the court, argued.
Anja Hofmeyr and Ashleigh Gordon of the law firm Cliffe Dekker Hofmeyr wrote in a note on the case that it would have far-reaching consequences for the telecommunication industry and for users.
“Regardless of there being an incumbent network provider, a residential estate may enter into an agreement with any preferred fibre network provider to deploy its fibre network in the duct infrastructure owned by the estate where there is sufficient space in the existing infrastructure to do so,” they wrote.
“By having more options, consumers can decide on the best internet service provider and on the best fibre network to serve their needs, without additional costs and construction disruption to estate residents. Having more options also promotes healthy competition.”
With the SCA’s judgment, Vodacom intended to go ahead with its fibre network at Dennegeur Estate in Somerset West, which was the test case.
But Telkom is now disputing one aspect that the SCA did not pronounce on – when can a service provider such as Vodacom insist on sharing Telkom’s ducts because there is sufficient space?
The Independent Communications Authority of SA (Icasa) earlier decided that there was sufficient space in the ducts related to all 15 of the estates in the Western Cape that Telkom and Vodacom have been fighting about, but Telkom wants to have this decision reviewed.
In its review application, Telkom claims that Icasa inspected less than 5% of its infrastructure in 15 estates before making its finding.
Icasa said it was possible for Telkom to lease the space in its ducts, but the authority only examined 90 of the 1 598 handholes (inspection holes) in the 15 estates.
Telkom argues that Icasa needs to investigate the entire system and all the infrastructure before making a decision.
It argues that at least 30% of the spare capacity in the ducts should be reserved for its maintenance.
The arrangement between Vodacom and estates to use Telkom’s spare capacity in its ducts did not serve the public interest, said Telkom, “because the Vodacom business model does not allow internet service providers to provide internet and other service over its networks”.
In her judgment, Judge Selemeng Mokose, said that, if the review application was eventually decided in favour of Telkom – and Vodacom was not barred from access by an interdict – Telkom would suffer irreparable harm.
Telkom argues that Vodacom could negatively affect its ability to make a profit from clients in the respective areas.
Mokose said this weighed far more heavily than the negative consequences for Vodacom.
Vodacom is arguing that, with an interdict against it, Telkom would be the exclusive service provider without competition in terms of price or service.
But if Vodacom can get access, residents will have the benefit of choice.
It is apparent from the court papers that the two service providers have been involved in disputes in various regions in the country.
Telkom said it had previously complained about Vodacom “unlawfully” obtaining access to the Eldo Lakes Estate in Centurion in Gauteng. Telkom informed the estate that Vodacom was acting “unlawfully” and that the network could not be rolled out.