The City of Tshwane will is scheduled to appear before the Constitutional Court tomorrow, to appeal a decision by the Supreme Court, which granted network operator Link Africa the right to use the City’s underground infrastructure for fibre optic cables.

The case is a little confusing, but the gist of it is that in 2013 Link Africa notified the City planned “to install fibre-optic cables in the City’s underground infrastructure including, in particular, in the City’s existing service ducts, sewer and storm-water infrastructure.” Moreover, Link Africa claims it ahs the right to do this without applying for permission under the terms of the Electronic and Communications Act (ECA).

The City took umbrage with Link Africa’s plans, and sought a court order from the Gauteng Division of the High Court in Pretoria to stop them from doing so. The City argued that Link Africa couldn’t install the cables without its permission, which it didn’t have.

The High Court, however, sided with Link Africa – and so did the Supreme Court of Appeal. Leaving Tshwane’s only recourse to either give in or take the case to the Constitutional Court.

Which brings us to the Constitutional Court. Since the Supreme Court of Appeal dismissed the City’s application, the only other place that the City can fight off Link Africa, is in the Constitutional Court.

The City is saying that the High Court incorrectly relied on decisions of the Supreme Court of Appeal, and wants the whole thing overturned.

“It argues that the ECA provisions in issue should be interpreted to mean that electronic communications network services licence-holders (such as Link Africa) require its consent, or are required to show due and demonstrable regard to its rights and for the right to use the City’s capital assets, in order to carry out the activities listed in the ECA,” explains a Constitutional Court summary of the forthcoming hearing.

The City argues that if Link Africa doesn’t need its permission, it would be arbitrary deprivation of property, which is in violation of the Constitution.

As a counter argument, Link Africa will be making the point that the ECA is there “to promote provision of electronic communications networks and related services and connectivity for all; and to promote the interests of consumers with regard to the price, quality and variety of electronic communications services.”

The ruling could serve as a landmark case for South Africa. Mobile operators MTN and Neotel, as well as fixed-line operators Telkom and Dark Fibre Africa have asked to be part of the proceedings as they are licensees in terms of the ECA and have an interest in the outcome. If the ConCourt finds in Link Africa’s favour, it could be a free-for-all in the pipes and sewers.

[Image – CC by 2.0/x_tine]