SMI Trading CC v Mobile Telephone Networks (Pty) Ltd and Others

• Jurisdiction: South Africa
• Judgment Date: 20 November 2009
• Citation: 2012 (2) SA 642 (GSJ)

SMI Trading CC v Mobile Telephone Networks (Pty) Ltd and Others
2012 (2) SA 642 (GSJ)

2012 (2) SA p642

Citation	2012 (2) SA 642 (GSJ)
Case No	119/2011
Court	South Gauteng High Court, Johannesburg
Judge	Coppin J
Heard	February 15, 2011
Judgment	November 20, 2009
Counsel	L Franck for the applicant.; M Basslian SC (with I de Vos) for the first respondent.; VS Notshe SC (with P Nobanda) for the second respondent.

Flynote : Sleutelwoorde F

G Posts and telecommunications — Telecommunications — Mobile cellular telecommunication services — Electronic communications network service licensee — Right of entry upon and construction of lines across land and waterways — Such right subject to 'applicable law', meaning all laws applicable to intended action — Electronic Communications Act 36 of 2005, s 22(1) and s 22(2).

H Constitutional law — Legislation — Validity — Electronic Communications Act 36 of 2005, s 22 — Proviso in s 22(2) that 'regard must be had to applicable law' bringing s 22 into line with Constitution in that arbitrary action not countenanced.

Headnote : Kopnota

I The owner of land on which first respondent (MTN) had erected a base station in terms of a lease agreement that had since expired, applied for a declaratory order that it be removed from his property, alternatively that s 22 of the Electronic Communications Act 36 of 2005 (ECA) — on which MTN relied as entitling it to retain the base station on applicant's land — be declared unconstitutional. The relevant parts of the impugned section allow J an 'electronic communications network service licensee' to 'enter upon any

2012 (2) SA p643

land' to 'construct and maintain an electronic communications network', A provided that, in doing so, 'due regard must be had to applicable law and the environmental policy of the Republic'. The parties contended for opposing interpretations of the section, in particular, whether the words 'any land' included private land and whether 'applicable law' meant only environmental laws.

Held, that the phrase 'any land' as used in s 22(1) of the ECA meant exactly what B it said; it clearly referred to both public and private land. The specific reference in the subsection to 'land reserved for public purposes' as being included in the phrase 'any land' indicated that the phrase 'any land' was much wider than and could not be restricted to 'public land'. In any event, an interpretation that restricted the provision to public land only would be strained, not contextual and inconsistent with some of the objects of the C ECA, in particular those that were intended to increase and broaden access to telecommunication services. (Paragraph [16] at 648C – E.)

Held, further, that the term 'applicable law' was not confined to 'environmental type' laws, but referred to all laws as defined in the Interpretation Act 33 of 1957, ie 'any law, proclamation, ordinance, Act of parliament or other D enactment having the force of law'. The 'applicable law' was that which was applicable to the action which was intended to be taken by the licensee in terms of s 22(1) of the ECA. Thus, for example, if the action the licensee intended to take was to go onto someone's land, there were other applicable laws, such as laws relating to ownership, the law of trespass, etc, for which due regard had to be had. (Paragraphs [22] – [23] and [27] at 649G – 650E and 651C – E.) E

Held, further, that the rationale for the proviso in s 22(2) was to prevent arbitrariness in the action of licensees in terms of s 22(1), thus ameliorating its crudeness and bringing it into line with the dictates of the Constitution. Section 39(2) of the Constitution constrained courts to promote the spirit, purport and objects of the Bill of Rights when interpreting any legislation. F Section 22, in its context, was capable of an interpretation in line with the Constitution: the section did not countenance arbitrariness. The proviso in s 22(2) was mainly directed at the licensee who intended to take the action contemplated in s 22(1), the section not authorising action where no regard was had to the applicable law. (Paragraphs [27] – [29] and [31] at 651C – 652B and 652D – E.)

Cases Considered

Annotations: G

Reported cases

Chetty v Naidoo 1974 (3) SA 13 (A): dictum at 20D compared

First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service and Another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) (2002 (7) BCLR 702): dictum in para [100] applied H

Hartland Implemente (Edms) Bpk v Enal Eiendomme BK en Andere 2002 (3) SA 653 (NC): dictum at 664D – F compared

Krugersdorp Town Council v Fortuin 1965 (2) SA 335 (T): compared

Telkom SA Ltd v MEC for Agricultural and Environmental Affairs, KwaZulu-Natal and Others 2003 (4) SA 23 (SCA) ([2002] 4 All SA 164): referred to I

Unimark Distributors (Pty) Ltd v Erf 97 Silvertondale (Pty) Ltd 1999 (2) SA 988 (T): dicta at 996A – B and 1011 A – B compared

Verstappen v Port Edward Town Board and Others 1994 (3) SA 569 (D): referred to. J

2012 (2) SA p644

Unreported cases A

Telkom SA Ltd v Born Wild Game Lodge CC (TPD case No 4067/00, 6 February 2001): referred to.

Statutes Considered

Statutes

B The Electronic Communications Act 36 of 2005, ss 22(1) and 22(2): see Juta's Statutes of South Africa 2010/11 vol 1 at 1-100.

Case Information

Application for declaratory order, alternatively, for declaration of constitutional invalidity of statutory provision.

L Franck for the applicant. C

M Basslian SC (with I de Vos) for the first respondent.

VS Notshe SC (with P Nobanda) for the second respondent.

Cur adv vult.

Postea (February 15). D

Judgment

Coppin J:

[1] The applicant seeks an order that the first respondent remove its base E station, including its cellphone tower and other equipment (all of which I refer to as the base station), from the applicant's property described as the Remainder of the Farm known as Farm Langgewacht No 235, Registration Division HT, in the Province of KwaZulu-Natal (the property). In the alternative, the applicant seeks an order declaring F s 22 of the Electronic Communications Act 36 of 2005 (the ECA) to be unconstitutional. The alternative relief depends on whether this court finds that the first respondent is entitled to retain the base station on the property in terms of that section, in the absence of an agreement between the applicant and the first respondent to that effect, or otherwise, without G the applicant's consent.

[2] It is common cause that the applicant owns the property and that the first respondent is an electronic-communications network service licensee in terms of and as contemplated in the ECA.

H [3] The first respondent contends that it is entitled to retain its base station on the property in terms of s 22 of the ECA. Alternatively, it avers that there is a monthly lease in place in terms of which it is entitled to occupy the property and that the applicant has not cancelled that lease.

[4] By way of background, it is common cause that Sisal Landgoed CC (Sisal), I the previous owner of the property, during the currency of its ownership of the property, entered into a written agreement of lease with the first respondent on the 21st of April 1998 in terms of which the latter rented a portion (110 m2) of the property and was permitted to erect and maintain the base station on the property. Subsequently, the property was purchased by Fynbosland 256 CC (Fynbosland) from Sisal. J Fynbosland concluded an addendum to the lease agreement with the first

2012 (2) SA p645

Coppin J

respondent on the 17th of May 2005, in terms of which the first A respondent was permitted to sublet a portion of the leased property to the second respondent. [1]

[5] The lease agreement thus commenced on the 1st of February 1998 and expired on the 1st of February 2008. The first respondent did B not exercise its option to renew it. The applicant purchased the property from Fynbosland and became its registered owner on or about the 31st of March 2008.

[6] The applicant and the first respondent were unsuccessful in negotiating a new lease. More particularly, they were unable to agree on a monthly rental. C

[7] On the 4th of December 2008 the first respondent sent an email to the applicant's attorney (Mr Marais) in which it intimated that it was planning to relocate its base station, that it had identified a suitable alternative position to erect it, and that it was getting the necessary approvals in that regard. D

[8] In response to an email from Mr Marais to the first respondent dated the 9th of December 2008, enquiring about compensation payable to the applicant for the period from the expiration of the lease agreement to the date of the removal of the base station from the property, the first respondent, in an email dated the 18th of January 2009, stated that the E applicant was not entitled to any compensation, but only to an amount of R2694,08 per month for the period 31 March 2008 to the date of the letter. The first respondent also intimated that it had commenced with preparations to remove the base station and anticipated that the removal would take approximately 10 months to complete. The email furthermore states: F

'(I)n the meantime, since the lease agreement has expired, and no consensus had been reached between the parties regarding the renewal of the lease agreement, we confirm that the terms and conditions of the expired lease agreement shall subsist on a month-to-month basis until such time as the base station has been removed. We confirm our G commitment in expediting the process of removal of the site and shall advise you of the progress accordingly.'

[9] Mr Marais replied to the email by letter dated the 20th of January...