Msunduzi Municipality v Dark Fibre Africa (RF) (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Steyn J
• Judgment Date: 14 April 2014
• Docket Number: 2763/2014
• Court: KwaZulu-Natal High Court, Pietermaritzburg
• Hearing Date: 27 March 2014
• Citation: 2014 JDR 0770 (KZP)

Steyn J :

[1]

The applicant seeks interim relief to restrain and interdict the respondent from conducting construction work on municipal property pending the final determination of its application for certain declaratory and review relief relating to the legality of the respondent's conduct. The terms of the interdicts sought are set out in paragraphs 2.1 to 2.3 of the notice of motion. The applicant also seeks the costs of the application for interim relief, including the costs consequent upon the employment of two counsel. The applicant contends that the respondent had acted unlawfully in that it had failed to obtain its permission and failed to act in accordance with conditions specified by the applicant before it commenced construction.

2014 JDR 0770 p2

Steyn J

Parties

[2]

The applicant is the Msunduzi Municipality which is a municipality duly established and responsible for the City of Pietermaritzburg. It is the owner of various properties within the city. The respondent is a company with registration number 2007/013968/07 and it trades under the name and style of D7A Open Access Network. The respondent is the holder of certain electronic communications network services licences issued in terms of the Electronic Communication Act, 36 of 2005 (hereinafter referred to as 'ECA') and constructs inter alia fibre optic cable networks upon, under, along or across streets and/or roads, consisting of the laying of underground ducts containing fibre optic cables. The application was heard on 27 March 2014. On 25 February the applicant brought the application on an urgent basis before Bezuidenhout AJ who adjourned it and ordered:

"(a)

The interim relief sought in Part A of the notice of motion is adjourned to 17 March 2014;

(b)

Respondent is to file its notice of opposition by 28 February 2014 and to file its answering affidavit by 7 March 2014; and

(c)

Applicant is to file any replying affidavit by 14 March 2014;

(d)

Costs are reserved."

[3]

The parties have for some time prior to this application been engaged in a process of negotiating the approval of wayleave permits and the terms of these permits. The applicant's approval was dependent on the adherence to the terms as referred to in annexure D7A4. The document contains inter alia the following conditions:

"1 a.

Proof of R5mil Public Liability Insurance cover for the planned duration of the project. To be extended as per delays to cover the actual duration of the project.

b.

Proof of each contractor's Indemnity Insurance.

c.

A letter is required from other service providers (Telkom, MTN, Vodacom, Transtel, Cell C, Neotel, Plessey, and Eskom) stating that they do not have any coinciding projects planned within 6 months that can be combined with the trenching of this project.

2014 JDR 0770 p3

Steyn J

…

g.

Proof of advertisement in local papers giving public warning and detailing the extent of the project and the exact locations.

2

A maximum of ten test pits at a time may be dug (any deviations from this must be applied for per section and written consent received from this Unit prior to commencement). …

3

Should any unforeseeable damages occur at any stage during this project, all repairs are to be effected immediately and all related costs are to be borne by the company making this application. Details of repair strategy teams are to be submitted.

…

5

During the trenching operations, all health and safety requirements in terms of the various acts are to be adhered to in terms of the environment, workers and the public (i.e. Full barriers, signage, etc).

…

8

For control purposes only one road per area may be worked on and be fully completed before the next road is commenced with.

…

19

Work at all road crossings must be well planned to ensure:

…

b.

No disruption of traffic during peak traffic (7-8am as well as 11.30-1pm on Saturdays)

…

f.

Msunduzi traffic Control is to be notified in advance.

23.

Should the Municipality or their contractor perform work at the same location as your trenching, before your final reinstatement is completed, then in this case you are still fully responsible for the reinstatement.

..

25.

An updated as built plan showing all your services within the Msunduzi Municipal area is to be submitted to this office upon completion."

[4]

The following facts are not disputed:

2014 JDR 0770 p4

Steyn J

4.1

The respondent submitted wayleave applications to the applicant during 2012, whereby it requested permission to commence construction. The applications were in respect of the very construction which the applicant now seeks to restrain.

4.2

The applicant furnished the respondent with its standard conditions which are contained in a letter. (See annexure D7A4 at page 144 et seq.)

4.3

The standard conditions relate to the manner in which construction is to be performed. The applications have never been approved.

4.4

The respondent commenced construction during November 2013 without any approval of the wayleave applications and without complying with the applicant's standard conditions.

4.5

The respondent is a duly authorised network services licencee.

Requirements for the relief sought

[5]

The requirements of an interdict are well established and laid down by Innes JA in Setlogelo v Setlogelo 1914 AD 221 at 227, that is that the plaintiff has to show that it has (a) a clear right; (b) an injury actually committed or reasonably apprehended (or an actual or threatened invasion of that right); and (c) the absence of a similar protection by any other ordinary suitable remedy in law. In Ladychin Investments v South African National Roads Agency 2001 (3) SA 344 (N) the court stated the principles of governing interim relief, as:

"1.

The requirements for a final interdict are well established and required the applicant to show:

(a)

A clear right;

(b)

a well-grounded apprehension of irreparable injury;

(c)

the absence of any other ordinary remedy.

If an applicant can prove the above requirements he will also, obviously, be entitled to an interim interdict.

2014 JDR 0770 p5

Steyn J

2.

Where the applicant cannot show a clear right then he has to show a right which, though prima facie established, is open to some doubt. In that event the applicant will have to show that the balance of convenience favours him. The test for the grant of relief involves a consideration of the prospects of success and the balance of convenience – the stronger the prospects of success, the less need for such balance to favour the applicant; the weaker the prospects of success the greater the need for the balance of convenience to favour him. By balance of convenience is meant the prejudice to the applicant if the interdict be refused, weighed against the prejudice to the respondent if it be granted.

3.

Even if there are material conflicts of fact the Courts will still grant interim relief. The proper approach is to take the facts as set out by the applicant, together with any facts set out by the respondent, which the applicant cannot dispute, and to consider whether, having regard to the inherent probabilities, the applicant should on those facts obtain final relief at a trial.

4.

The facts set up in contradiction by the respondent should then be considered. If serious doubt is thrown on the case of the applicant he should not succeed in obtaining temporary relief, for his right, prima facie established, may only be open to 'some doubt'.

5.

If there is mere contradiction, or unconvincing explanation, the matter...