In a judgment that TechCentral says has significant consequences for the telecommunications industry and homeowners, the SCA has overturned a lower court’s judgment, in favour of Telkom, ruling that Vodacom is entitled to access its rival’s ducts.

In 2017, the High Court ruled in favour of Telkom, stopping Vodacom from using its (Telkom’s) copper ducts at the Dennegeur Estate on Bizweni Avenue in Dennegeur, near Cape Town, to roll out fibre to residents. Telkom described the judgment as a ‘landmark’ ruling at the time.

High Court Judge Vincent Saldanha said in his judgment that Telkom had established its possession of the communications facilities on the property and that the conduct of both Vodacom and the estate constituted ‘an unlawful deprivation of such possession’.

But the SCA thought differently.

‘The SCA had to consider whether a fibre network service provider could access the ducts constructed on and under a residential estate to deploy its fibre network, where an incumbent’s existing cables were already present in the duct infrastructure,’ Anja Hofmeyr and Ashleigh Gordon, of law firm Cliffe Dekker Hofmeyr, said in a note to clients.

The SCA found that although Telkom may have accessed the duct infrastructure and manholes for its own benefit, the ‘indisputable facts established that the infrastructure formed an integral part of the immovable property which was owned, occupied and controlled by the homeowners’ association’.

The court ruled that ‘notwithstanding installation by Vodacom of its optic-fibre network in the same ducts as the cables, Telkom’s actual use of the ducts, cables and its service to its customers remain undisturbed. It has not lost possession of anything.’

The CDH experts emphasised ‘the importance of this judgment for the telecommunications industry and, indirectly, for consumers'. It is clear, said Hofmeyr and Gordon, that '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 added, according to TechCentral: ‘By having more options, consumers can decide, not only on the best Internet service provider, but also 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,’ they said.

Full TechCentral report