South Africa: Constitutional Court judgment – City of Tshwane v Link Africa

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23 September 2015 – This morning the Constitutional Court of South Africa handed down judgment in City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and Others [2015] ZACC 29, which the Court heard in May this year.  As we noted in our preview, the case is about a constitutional challenge, by the Tshwane Municipality, to sections 22 and 24 of the Electronic Communications Act (pdf).  These allow licensed electronic communications providers to enter municipal land and lay underground cables without the municipality’s consent.

A narrow majority of the Court (per Cameron J and Froneman J) finds that the sections can be read constitutionally, are indeed a “beneficial intervention by the Legislature”, and do not depart inappropriately from the common law of servitudes.  The majority cautions against the minority judgment’s “outdated, over-rigid and absolute notion of ownership”.  That minority judgment, written by Jafta J and Tshiqi AJ, finds that the sections constitute an arbitrary deprivation of landowners’ property rights.  (Conceptions of property also divided the Court in Shoprite Checkers v MEC, which was handed down just two months ago.)

The Court’s media summary is available here (pdf) and the full judgment is here.