Telkom has lost a case against Vodacom in the Pretoria High Court over the latter’s use of Telkom’s ducts and sleeves to roll out its fibre network.
This outcome is great news for South African customers, who could see fewer obstacles impeding their preferred fibre network from installing infrastructure in their area.
In 2015, the Homeowners’ Associations of 15 private residential estates in the Western Cape invited Vodacom to install fibre in their complexes. However, Telkom already had underground ducts in these estates that had been used for the rollout of telephone and ADSL lines.
Vodacom asked Telkom to allow it to install fibre in its ducts in the estate, but Telkom declined, claiming it was not obliged to share its infrastructure. Vodacom installed fibre in these ducts anyway, leading to a conflict that reached the courtroom.
Vodacom explained to MyBroadband that in December 2015, it filed a complaint with ICASA in terms of section 43 of the Electronic Communications Act and the Facilities Leasing Regulations regarding Telkom’s unwillingness to enter into a Facilities Leasing agreement.
ICASA investigated Vodacom’s complaint and ultimately determined that the sharing of duct infrastructure in these estates was “both technically and economically feasible,” and “promoted the efficient use of networks and services.” However, Telkom contested this, resulting in the court cases that have followed.
Why Vodacom won
Judge Neil Tuchten noted in his judgement that Section 43 of the Electronic Communications Act renders it mandatory for licensees to lease any electronic communications facilities to others who qualify – provided this request is not “unreasonable”.
Key to Tuchten’s judgement that Vodacom’s request was reasonable was that Telkom said it wanted to use this available space to install its own fibre cables.
“To my mind, once Telkom asserts that it wants to lay cabling where Vodacom wants to lay cabling, it admits, by implication, that what Vodacom wants to do is both technically and economically feasible and would promote the efficient use of networks and services,” said Tuchten.
“How can you argue that what your competitor wants to do is not technically and economically feasible and contributes to the efficient use of networks and services when you are planning to do the very same thing?”
Tuchten, therefore, determined that ICASA’s decision that Vodacom should be allowed to use Telkom’s ducts was reasonable. “That route was more competition-enhancing, and thus more advantageous to consumers, than the alternative.”
A long legal battle
This was not the first time this case has been heard in court. In 2017, Telkom won the first iteration of the case in the Western Cape High Court. The court determined that Vodacom must remove its cabling from these ducts as the prescribed regulatory processes had not been followed.
However, in April 2019, Vodacom appealed the ruling in the Supreme Court of Appeal and won. The Supreme Court said that Telkom “did not enjoy possession of the infrastructure or cables which formed part of Dennegeur [one of the estates] and was owned, occupied, and controlled by the Home Owners Association”.
“Its rights are derived from the provisions of Section 22 of the Electronic Communications Act. The rights conferred are in their nature servitutal,” said the court.
It said that Telkom did not possess the vacant space in the ducts and sleeves which was subsequently occupied by Vodacom, and Vodacom’s conduct was “therefore not an act of spoliation”.
Telkom contested this ruling, leading to the recent case. Telkom declined to comment except to say that it is reviewing the judgement and has not yet made a decision regarding whether it will take further action.