- The Pretoria High Court has set aside ICASA’s decision that Octotel unlawfully accessed Telkom’s fibre infrastructure, finding the regulator misinterpreted Section 43 of the Electronic Communications Act.
- Judge Mojapelo held that Section 43 places an obligation on incumbents to lease facilities when reasonably requested, not on new entrants to request a lease before accessing infrastructure.
- The court substituted ICASA’s ruling with an order dismissing Telkom’s complaint in full, delivering a decisive win for open-access fibre operators.
When Octotel rolled out fibre infrastructure in several Western Cape residential estates, it believed it was acting lawfully with the consent of homeowners’ associations and within the framework of South Africa’s pro-competition telecommunications regime.
Nearly seven years later, the Pretoria High Court has confirmed that belief, delivering a stinging rebuke to the Independent Communications Authority of South Africa (ICASA) and its Complaints and Compliance Committee (CCC) for fundamentally misreading the law.
Judge Mojapelo reviewed and set aside ICASA’s decision that Octotel had contravened Section 43 of the Electronic Communications Act by installing fibre without first leasing facilities from Telkom. The court substituted ICASA’s decision with an order dismissing Telkom’s complaint entirely.
At the heart of the dispute was a simple yet far-reaching question of whether Section 43 of the Electronic Communications Act imposes a legal duty on a new network operator to lease infrastructure from an incumbent before using existing ducts. Judge Mojapelo answered that it does not.
Section 43 misunderstood by the regulator
The CCC had treated Section 43 as imposing what it called a “facility seeker obligation”, effectively requiring Octotel to approach Telkom and conclude a leasing agreement before accessing underground ducts and manholes. Judge Mojapelo found this interpretation legally unsustainable.
“Section 43(1) is framed in the imperative ‘must … lease’ in relation to the provider, not the seeker,” the judge explained, emphasising that the statutory obligation lies with the incumbent network operator when a reasonable request is made. He added that reading a positive obligation into the section against a newcomer “is to ignore and render redundant the words ‘on request’ and to invert the direction of the obligation”.
The court stressed that Section 43 was designed to break the historical dominance of incumbents, not to entrench it. Quoting earlier authority, Judge Mojapelo reaffirmed that the provision is “a radical departure from the common law”, intended to prevent dominant players from “hug[ging] [their] infrastructure to [their] corporate breast”.
By treating Octotel’s conduct as a contravention simply because it had not requested a lease, ICASA had, in the court’s words, “asked itself the wrong legal question”. This amounted to a material error of law, rendering the regulator’s decision reviewable under the Promotion of Administrative Justice Act (PAJA).
Ownership and control cannot be wished away
A central pillar of ICASA’s reasoning was that ownership of the ducts and manholes was “irrelevant” for Section 43 purposes. Yet paradoxically, the CCC went on to find that Telkom owned the infrastructure and had the right to control access to it. Judge Mojapelo dismantled both propositions.
“Section 43 does not refer to ownership at all,” the judge noted, but that did not mean ownership was irrelevant to determining who could lawfully control or lease infrastructure. Common law accession, he held, remains the starting point: underground ducts installed as permanent fixtures accede to the land and are owned by the landowner unless there is proof to the contrary.
The CCC’s rejection of homeowners’ association ownership, and its conclusion that Telkom “retained ownership”, was not supported by the evidence. “Telkom produced no written agreements with the developers or homeowners’ association… to prove that ownership of the ducts and manholes had been ceded to it,” Judge Mojapelo observed. Even Telkom’s own asset registers contradicted the regulator’s findings.
Equally flawed was the CCC’s view that Telkom had a right to control access simply because the infrastructure was built to its specifications and used by it. “A licensee does not acquire a general right to exclude others from infrastructure merely because it participated in specifying or supervising its installation,” the court held, warning against conflating historical involvement with legal control.
Sandown findings described as irrational
The judgment was particularly critical of ICASA’s treatment of the Sandown Estate, where it was common cause that Octotel had installed its own ducts and had removed the few fibres mistakenly placed in Telkom infrastructure.
Despite this, ICASA still imposed sweeping remedial orders. Judge Mojapelo described this as indefensible. “By the time ICASA took its decision, there was no continuing shared use of Telkom’s ducts by Octotel in Sandown,” he wrote, adding that the resulting orders bore “no rational relationship to the purpose of addressing any contravention”.
This, the court held, rendered ICASA’s decision irrational and unreasonable in the administrative law sense.
Court steps in and substitutes the decision
Rather than sending the matter back to ICASA, the High Court took the rare step of substituting the regulator’s decision with its own. Judge Mojapelo found that the outcome was a foregone conclusion once Section 43 was correctly interpreted and the facts accepted.
“Telkom’s complaint… cannot succeed as a matter of law,” the judge concluded. While Telkom remains free to pursue any property or servitude claims it may have under Section 22 of the Electronic Communications Act or the common law, ICASA was not entitled to characterise Octotel’s conduct as a breach of Section 43.
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