Civiliter exercise of a statutory servitude : reflections on Link Africa and Telkom

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.