Abstract:
The Constitutional Court has twice been called upon to interpret s 22(1)
of the Electronic Communications Act 36 of 2005. In both Link Africa and Telkom SA,
the respective local authorities contended that the licensees needed their prior consent
for the deployment of the ICT infrastructure. Conversely, Link Africa and Telkom SA
SOC Limited contended that the non-consensual statutory servitudes afforded them
unhindered powers for the rapid deployment of ICT network infrastructure. However,
s 22(2) of the Act demands that the non-consensual servitudes must be exercised civiliter
modo. In Link Africa the majority of the Court employed the civiliter principle in its
colloquial form to calibrate the servitutal relationship. In Telkom SA the Court calibrated
the servitutal relationship without employing this principle at all. My hypothesis is that
by eliding the civiliter principle altogether in Telkom SA and by engaging it only in
its colloquial form in Link Africa, the Court collapsed the calibration of the servitutal
relationship between the licensee and local authority into an adversarial inquiry about
their respective rights. Without filtering these rights through the civiliter principle the
Court infused an unhealthy paleness into the servitutal relationship that will not be able to
withstand the pressure as the push for the rapid deployment of ICT network infrastructure
intensifies in coming years. While laudable, the reasoning of the Court in both Link Africa and Telkom SA is disjointed because it does not rely directly on the peremptory property
law principles of the common law of servitudes to calibrate the servitutal relationship
between licensees and local authorities.
