In City of Tshwane Metropolitan Municipality v. Link Africa
(Pty) Ltd and Others (CCT 184/14)  ZACC 29, the
Constitutional Court confirmed the constitutionality of a provision
in the Electronic Communications Act 36 of 2005 (ECA) that allows
licensees to enter into and construct electronic communications
networks on another person's land without the landowner's
This judgment is of particular importance as it found that the
ECA effectively creates a public servitude over land in favour of
Link Africa (Pty) Limited (Link Africa) was issued with a
licence under the ECA to develop a fibre optic cabling
Section 22 of the ECA entitles Link Africa, as a licence holder,
to construct electronic communication infrastructure on the land of
another person, provided that due regard is had to applicable laws
and the State's environmental policy. Link Africa wished
to exercise these rights by installing its fibre optic cabling
network on the property of the City of Tshwane Metropolitan
The City asked for an order (i) declaring that the
landowner's consent is required under section 22 of the ECA
prior to constructing electronic communication infrastructure on
that person's land and (ii) interdicting Link Africa from
installing a fibre optic cabling network on the City's property
without the consent of or an agreement with the City. In the
alternative, the City made an application that, if it is held that
section 22 of the ECA does not require the landowner's consent,
section 22 be declared unconstitutional as it constitutes the
arbitrary deprivation of property.
Judgment of the Constitutional Court
The court found that (i) section 22 of the ECA does not require
landowners' consent and (ii) there is no other law that
requires the landowner's consent in the present
In examining the constitutionality of section 22 of the ECA, the
court considered whether the deprivation of land brought about by
section 22 is actually arbitrary.
First, the court found that the requirement in section 22 of the
ECA for licensees to give due regard to applicable laws protects
landowners from having their land expropriated without compensation
or a fair procedure as the provisions of the Expropriation Act 63
of 1975 would kick in.
Secondly, the court found that section 22 of the ECA effectively
creates a public servitude. The court emphasised that property
ownership under the common law does not afford the owner an
absolute bar to entry without consent and that property as an
individual right is subject to social imperatives. The rights of an
owner have always been limited, under the common law, to servitudes
over the property.
The court held that the common law provides flexible and
equitable principles that protect landowners whose properties are
subjected to public servitudes and that such principles are
available to landowners in the circumstances contemplated in
section 22 of the ECA.
The rights over the property of another under a servitude must
be exercised civiliter modo. This means that the rights
must be exercised respectfully and with due caution.
As the rights conferred by section 22 of the ECA must be
exercised in compliance with the common law principles related to
servitudes, this ultimately means that:
licensees may select the premises and access to them for the
purposes of constructing, maintaining, altering or removing their
electronic communication network or facilities in taking action
under section 22;
this selection must be done in a civil and reasonable manner
(which includes giving reasonable notice to the landowner of where
they intend to locate their works and determining the proposed
access to the property in consultation with the landowner);
compensation in proportion to the advantage gained by the
network licensee and the disadvantages suffered by the landowner is
payable by the licensee to the landowner in respect of the exercise
of the public servitude granted under section 22 of the ECA;
where disputes arise about the manner of exercising rights
under section 22 of the ECA or the extent of the compensation
payable, these must be determined by way of dispute resolution or
Due to the safeguard provided under the common law in relation
to servitudes, the court found that the deprivation of property
under section 22 is not procedurally or substantively arbitrary. In
addition to these common law safeguards, the court also emphasised
that the ECA aims to meaningfully and practically improve South
Africa's broadband capacity and that section 22 of the ECA
serves a legitimate and important legislative purpose. This is
further evidence that the deprivation of property under section 22
of the ECA is not arbitrary.
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