C&A Friedlander Attorneys

Written by: Miles Manning

A fundamental cornerstone of the rule of law is that no person may take the law into their own hands. Following this doctrine, if anyone takes away another person’s possession (regardless of the underlying right to the property) without due legal process, that person acts unlawfully. To prevent people from reverting to this type of unlawful “self-help”, the law has developed an effective remedy, the mandament van spolie, for the restoration of possession.

To avail themselves of this remedy, a person needs only to prove that they were in peaceful and undisturbed possession of the good (corporeal or incorporeal) and that they were unlawfully deprived of such possession by another. The Court will then examine whether the initial party had any right to possess the good at a later stage and after restoring possession thereof to the initial party.

Although this doctrine dates back several centuries, it has found some modern application in relation to the installation of internet fibre cables. Reliable and fast internet is essential in the modern day and age, and the provision of related services has become a large industry.

Fibre network operators (FNOs) need to incur significant expenses, through the installation of their ducts, manholes, and related infrastructure (the infrastructure) before they can start providing internet services. Some homeowners’ associations (or trustees) will insist that a new FNO seeking to offer its services at the complex make use of existing infrastructure to lay its fibre-optic cabling and related equipment (especially when the complex bore the cost of the initial infrastructure).

The question then arises as to whether an incumbent FNO can prevent a newcomer from utilising the existing infrastructure, as Telkom has tried to do on the basis of the mandament van spoile.

In Dennegeur Estate Home Owners Association v Telkom SA SOC Ltd 2019 JDR 0635 (SCA), it was held that the presence of the cables in the infrastructure does not constitute physical possession of the infrastructure. Telkom was accordingly not entitled to prevent Vodacom from occupying the infrastructure on that basis.

The Court held that Telkom can only be in possession of the portion of the ducts that is occupied by its cabling, and that one cannot be in possession of unused vacant space in the infrastructure. The Court then concluded that other ISPs or FNOs cannot be prevented from installing their infrastructure in the vacant spaces within the ducts.

This promotes competition and can only be beneficial to you as you continue to Zoom, Snap, and click.

If you are a trustee or a member of a homeowners’ association, make sure that you take independent legal advice regarding the utilisation of the existing infrastructure and opposition that may be encountered from service providers claiming possession over the infrastructure.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).