A ruling finds homeowners’ associations can give permission for fibre to be laid. (Photograph: Freepik)
Two key appeals set to be heard in the Supreme Court of Appeal (SCA) this year will determine whether homeowners can freely give permission for fibre rollout in their estates, or whether competitors must first seek approval from Telkom.
This comes as there are two contradicting rulings over whether Telkom has rights to infrastructure in housing estates and whether smaller fibre companies must lease from the telecoms giant to roll out cable.
There are more than 50 000 registered housing estates in South Africa containing millions of individual units.
In a recent North Gauteng High Court ruling involving Octotel, the judge ruled that Telkom had no rights over ducting and manhole covers and that homeowners’ associations (HOAs) can give permission for fibre to be laid.
An earlier 2024 matter involving Metro Fibre Networks (MFN) found that Telkom had rights over piping infrastructure in a housing estate. As a result, MFN had to either remove its fibre or enter into lease agreements with Telkom.
See also
Anton Kotze, director of Makda Cull Kotze Incorporated and acting on behalf of MFN, says the current legal position is that HOAs can “autonomously give network operators permission to put cables into the pipe zone in their property”. This, he explains, is because the ruling in the Octotel matter stands because MFN is set to appeal its legal loss.
The issues stem from separate complaints Telkom lodged with the Independent Communications Authority of SA (ICASA) arguing that other companies were illicitly using its infrastructure (manholes and ducting) to lay cables.
In both instances, ICASA’s Complaints and Compliance Committee (CCC) found in favour of Telkom, stating the telecoms company had rights over the ducting and manhole covers.
This, it said, meant Octotel and MFN had to remove their fibre cables and enter into leases with Telkom – decisions that were then taken on appeal to the North Gauteng High Court.
In the Octotel matter, the Western Cape-based company had laid fibre at three different townhouse complexes. Telkom alleged that Octotel unlawfully accessed and installed its optic fibre cabling into Telkom’s ducts, manholes and related infrastructure at these complexes.
Telkom claimed ownership rights over these facilities based on it having supplied plans for the ducting, specifications for the installation, supervision of the work, and final sign off on the piping.
“Telkom called the shots. The installation of the passive underground infrastructure was done at the behest of Telkom, as it were,” the CCC stated.
However, the North Gauteng High Court disagreed in a ruling handed down recently. Acting Judge Mojapelo pointed out that the infrastructure was built and is maintained at either the developers’ or HOAs’ cost.
In addition, the judge said the HOAs control physical access to the estates and authorised Octotel to use the ducts, and that Telkom did not show it had ongoing physical control over the infrastructure, as demonstrated by the fact that it only noticed a year after the fact that Octotel was accessing the ducting.
ITWeb reliably understands that Telkom will appeal this ruling to the SCA.
Separately, MFN is appealing a 2024 North Gauteng High Court ruling against it that ordered the small fibre company to lease space in the ducts from Telkom.
While Judge Brand ultimately ruled against MFN in the High Court based on Telkom having rights over the ducting, he did state: “I am of the opinion that the duct is the property of the HOA.”
The judge acknowledged that “I am aware that the agreement between Telkom and the developer contains a clause in terms of which the proprietary rights and ownership of all materials were reserved by Telkom. However, the fictitious reservation of an immovable property cannot trump reality.”
However, Judge Brand found that Telkom’s servitudinal rights over the ducting gave it sufficient “entitlement” to require MFN to negotiate a lease. As a result, MFN was ordered to either remove its cables or formalise leases with Telkom.
In both cases, the smaller fibre companies referred to the 2019 Supreme Court of Appeal decision in which Vodacom won the right to access underground ducts, sleeves and manhole covers within the Dennegeur Residential Estate in Cape Town.
In this ruling, commonly called the Dennegeur case, the judges said Telkom could use the space in the ducts where it had already run cable, but other space was available to its competitors – much like how other cars are free to also use a toll road.
Kotze explains that this case differs in one key aspect in that there was no argument as to ownership because all the parties agreed the infrastructure belonged to the HOA.
