Re: Legalities of Barring other operators to a office building

IANAL, but I was one of the authors of the (still unpublished!) Draft Rapid Deployment Policy.

> Land owners have the right to refuse where they have provided alternatives

Where does this right come from? S22 of the ECA is quite clear:

22. Entry upon and construction of lines across land and waterways.—
(1) An electronic communications network service licensee may—
(a) enter upon any land, including any street, road, footpath or land reserved
for public purposes, any railway and any waterway of the Republic;
(b) construct and maintain an electronic communications network or
electronic communications facilities upon, under, over, along or across
any land, including any street, road, footpath or land reserved for public
purposes, any railway and any waterway of the Republic; and
(c) alter or remove its electronic communications network or electronic
communications facilities, and may for that purpose attach wires, stays or
any other kind of support to any building or other structure.
(2) In taking any action in terms of subsection (1), due regard must be had to
applicable law and the environmental policy of the Republic.

Note the repeated use of the word "any" above.

The only "out" anyone has is the second sub-section, requiring the ECNS Licensee to pay "due regard to applicable law". Essentially, what this means is that you have to behave yourself in a civilised manner:
1	Provide sufficient notice of your intention
2	Give the Land-owner the opportunity to point out any likely difficulties with the route chosen, and discuss alternatives
3	Make good after you have finished, and
4	Pay any reasonable fees or rents.

What it does NOT allow the land-owner to do is refuse access. There are any number of court cases where this right of access to any land, public or private, has been upheld time and again. For example, see: -

Constitutional Court Case number CCT 184/14, between the City of Tshwane Metropolitan Municipality and Link Africa and others, decided on 23 September 2015. The court embraced the principle that rights over the property of another should be exercised “respectfully and with due caution”. Nevertheless, it upheld those rights, as have done all other similar cases that I am aware of.

HTH. I'm sure that there are some good lawyers (!) lurking on this list who would be happy to advise you, for a fee.

Kind regards,

William Stucke
079-501-0850
[email protected]

-----Original Message-----
From: [email protected] [mailto:[email protected]] On Behalf Of hvjunk
Sent: 29 July 2016 08:26 AM
To: Legal IT Discussion
Cc: IOZ
Subject: Re: [IOZ] Legalities of Barring other operators to a office building

(Copying in IOZ Legal)

> On 29 Jul 2016, at 07:50 , Edrich de Lange <[email protected]> wrote:
> 
> Good day
> 
> Bit of a strange one, but didnt know where else to ask.
> We have a customer who is in an office building, and the  building 
> management refuses to allow other operators in the building.
> 
> DFA has installed a BuddyBox in the building to speed up their fibre 
> installs, but as these are all small businesses (eg 10 people or less 
> in most cases) the DFA solution is just too expencive.
> 
> Is there any legal way to force the building management to allow 
> another provider in?
> 
> Telkom is in there but that infrastructure is so old its barely useable.
> 
> Kind regards
> 
> Edrich de Lange
> [email protected]
> 0832629566

Hi Edrich,

 I.A.N.A.L. with knowledge of common law and the details of the telecommunications law, but the issue  as far I’ve been told is that it is private property, and your client will have to check their lease agreement(s) and use that as leverage to “convince” the building management. Else, if they are part of a body corporate, then it’ll be the time to garner support from the other owners to change the rules.

Land owners have the right to refuse where they have provided alternatives, and your client is free to renegotiate their lease and move to another building that does support them and you.

Hendrik
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