Kwazulu Natal South African Road Agency Ltd v Telkom SA Ltd (8131/2009) [2010] ZAKZPHC 88 (25 October 2010)

IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG REPUBLIC OF SOUTH AFRICA

CASE NO: 8131/2009

In the matter between

THE SOUTH AFRICAN NATIONAL ROADS

AGENCY LIMITED …......................................................................................................APPLICANT

AND

TELKOM SA LIMITED ….............................................................................................RESPONDENT

JUDGMENT

Delivered on: 25- 10- 2010

JAPPIE J

[1] The Applicant, the South African National Roads Agency Limited, a registered company, was established in terms of the South African National Roads Agency Limited and National Roads Act No. 7 of 1998 (hereinafter referred to as "the SANRAL Act"). In terms of section 7 of the SANRAL Act all land and servitudes in connection with the national roads vest with the Applicant.

[2] It has been usual for the Respondent. Telkom SA Limited, to place it's cables and equipment on and in land vested in the Applicant for the purposes of creating and maintaining a nationwide communications link. The Applicant alleges that the Respondent is and continuing to place such objects, cables and equipment on Applicant's land without contractual or other consent of the Applicant and has in so doing created a dispute between the parties.

[3] At present there is no contractual relationship between the parties which governs their respective rights and obligations. The Applicant now seeks a declarator to bring a degree of certainty to the relationship between the parties and for that reason seeks an order in the following terms:

1.1. Any actions by the Respondent as a licensee in terms of the Electronic Communications Act No. 36 of 2005 in terms of Section 22 thereof or otherwise in respect of land under the control Applicant in terms of the South African National Roads Agency Limited and National Roads Act No. 7 of 1998 requires the permission by the Applicant in terms of section 48 thereof;

1.2. absent of such permission granted in terms thereof, the actions of the Respondent in respect of the said land are illegal and unlawful;

1.3. any such permission granted by the Applicant in its discretion may be subject to the prescriptions referred to in Section 48(3)(b) of the South African National Roads Agency Limited and National Roads Act No. 7 of 1998.

[4] In the Notice of Motion the relief sought by the Applicant included an order declaring that certain actions by the Respondent in installing its facilities on that portion of the N2 national road in the vicinity of the town of Pongola without the Applicant's

permission is illegal and unlawful and that the Respondent be ordered and directed to remove the said facilities. In addition the Applicant sought an order that the Respondent be interdicted and restrained from entering or carrying on any activities on land under the control of the Applicant without general or specific written permission granted by the Applicant. In the course of argument, counsel for the Applicant indicated that the applicant would not be pursuing the aforesaid relief and that it would contend itself with a declaritor as set out in paragraph 3 above.

[5] The dispute between the parties arose in January 2009 when the Respondent commenced work within the road reserve on a national road - N2 section - near the town of Pongola. The Respondent had applied for permission from the Applicant but when no permission was forthcoming, the Respondent merely commenced work and placed its cables and equipment within the road reserve. At the time when the Respondent commenced the aforesaid work no permission had been given by the Applicant in terms of the SANRAL Act. The Applicant viewed the Respondents conduct as a contravention of section 48 of the SANRAL Act. Notice was given to the Respondent on the 13th February 2009 requesting the Respondent to immediately discontinue construction activities and/or the installation of telecommunications

equipment inside the N2 road reserve. The Applicant alleges that the Respondent ignored the aforesaid notice and continued with the work unabated.

[6] It is common cause that the Applicant and the Respondent has for sometime been negotiating a draft agreement which would generally

resolve the issues raised by the installation by the Respondent of its communication facilities on the road reserve.

[7] The parties have gone a long way in resolving most of the terms of such an agreement and the only outstanding issue appears to be the payment of a usage fee or levy for the Applicant's services and to deal with the cost of removing cables which have to be moved when the route or the configuration of the road changes. The levy is usually an annual charge to be paid for the so called "servitude".

[8] The Applicant alleges that the failure by the parties to conclude such a general agreement has led to an intolerable and dangerous

situation It further contends that at present the parties are deadlocked and the Respondent appears to be under no pressure or

inclination to negotiate a universal agreement with the Applicant. The Respondent is now merely doing as it pleases as if it has a dominant right to do so. The Applicant further contends that as no agreement exists between the parties and the Respondents conduct by simply doing as it pleases without the Applicants permission, by installing and laying its cables within the road reserve has

compelled the Applicant to launch the present proceedings.

[9] In opposing the relief sought the Respondent has raised the following:-

1. That the case the Applicant now seeks to make is not to be found in the Applicant's founding affidavit.

2. That there is an irreconcilable dispute of fact as to whether or not there is an agreement/understanding between the parties that govern their relationship as well as the manner by which the Respondent would obtain the Applicant's permission for it to lay and install its caballing on land under the control of the Applicant.

3. That the correspondence between the parties give rise to an inference or that it can be construed [from the correspondence] that the Applicant has, in writing, granted the Respondent general permission to lay or install its caballing on land under the control of the Applicant. The Respondent contends that if there is doubt or a factual dispute about this contention then the application ought to be dismissed.

[10] In the opposing affidavit the Respondent has raised in limine the fact that both the Applicant and the Respondent are organs of state as contemplated and defined in the Inter-governmental Relations

Framework Act No. 13 of 2005. (the "IRF Act"). Section 40 of the IRF Act imposes upon all organs of state an obligation to make every reasonable effort to settle inter-governmental disputes without resorting to judicial proceedings The Applicant had failed to comply with this provisions and accordingly, the Respondent contended, that the application should under the circumstances be dismissed with costs. However, in argument Mr Maritz SC, for the Respondent, indicated that the Respondent would not persist with the point in limine and that the Respondent would rely on the points raised as I have set out in the above paragraph.

[11] It was further contended by the Respondent that the Applicant was not entitled to interdictory relief as the Applicant, inter alia, has other remedies available to stop any unlawful conduct on the part of the Respondent or any other party. Counsel for the Applicant, Mr Dickson SC. in the course of argument, indicated that the Applicant would not be seeking an order for interdictory relief. It is, therefore, unnecessary for me to deal with this part of the application.

[12] It is so that the Respondent do not contend that the provisions of section 48 of the SANRAL Act do not apply to it. That is to say that the Respondent concedes that the section is applicable in its dealings with the Applicant. Section 48(1) provides:

"(1) Except as provided in subsection (2), no person may do any of the following things without the Agency's written permission or contrary to that permission, namely -

(a) on or over, or below the surface of. a national road or land in a building restriction area, erect, construct or lay or establish any structure or other thing (including anything which is attached to the land on which it stands even though it does not form part of that land);

(b) make any structural alteration or addition to a structure or that other thing situated on or over, or below the surface of, a national road or land in a building restriction area;

(c) give permission for erecting, constructing, laying or establishing any structure or that other thing on or over, or below the surface of. a national road or land in a building restriction area, or for any structural alteration or addition to any structure or other thing so situated."

[13] The Applicant contends that the Respondent requires its written permission before the Respondent could erect, construct or lay, or establish any structure or thing on or over, or below the surface of. a national road or land in a building restriction area under the control of the Applicant.

[14] Section 48 (3) of the SANRAL Act provide what the Applicant may take into account before granting permission. Section 48 (3) provides:-

"(a) the Agency, in its discretion may give or refuse its permission in terms of subsection (1).

(b) when giving permission, the Agency my prescribe- (i) the specification to which the structure, other thing, alteration or additionfor which permission is asked, must comply: (ii) the manner and circumstances in which, the place where and theconditions on which the structure, other thing, alteration or addition maybe erected, constructed, laid, established or made and (iii) the obligations to be fulfilled by the owner of the land in question if the structure, other thing, alteration or addition is erected, constructed, laid, established or made." [15] The SANRAL Act do not provide for any exception in favour of the Respondent. Accordingly, the Applicant contends that any conduct on the part of the Respondent which conduct constitute the installing of its facilities in or under the reserve of a national road without the Applicant's written permission required by the SANRAL Act is illegal and unlawful. [16] As I understand the Respondent's argument, it does not dispute the Applicant's interpretation of the provisions of the SANRAL Act. The Respondent instead, contends that the correspondence between it and the Applicant gives rise to an inference or can be construed that the Applicant has given it "a general permission" to install or lay it's caballing in or on the reserve of the national road. It is this contention of the Respondent and its consequent conduct which has motivated the Applicant to launch the present proceedings. [17] The founding affidavit makes it clear that there is a dispute between the parties as to the requirements of section 48 of the SANRAL Act. In paragraph 6.1 of the founding affidavit the Applicant alleges that there is a dispute between the parties as to their respective rights which arises when the Respondent places its cables and equipment on land under the control of the Applicant. [18] When the Respondent applied to the Applicant for permission to place its caballing in or along the national road near the town of Pongola, it is common cause that the Applicant did not respond to the Respondent's aforesaid application. Nevertheless the Respondent continued with its operation and actions without the Applicant's written permission. Although the Applicant concedes that it may well have been remised in not replying to the Respondent's application in the given instance, it was submitted that the Applicant's failure as aforesaid it cannot be construed that there has been compliance with section 48 of the SANRAL Act. [19] There is thus a dispute between the parties as to whether or not section 48 of the SANRAL Act had been contravened by the Respondent and accordingly the Applicant now seeks a declaritor to that effect.

(b) when giving permission, the Agency my prescribe-

(i) the specification to which the structure, other thing, alteration or additionfor which permission is asked, must comply:

(ii) the manner and circumstances in which, the place where and theconditions on which the structure, other thing, alteration or addition maybe erected, constructed, laid, established or made and

(iii) the obligations to be fulfilled by the owner of the land in question if the structure, other thing, alteration or addition is erected, constructed, laid, established or made."

[15] The SANRAL Act do not provide for any exception in favour of the Respondent. Accordingly, the Applicant contends that any conduct on the part of the Respondent which conduct constitute the installing of its facilities in or under the reserve of a national road without the Applicant's written permission required by the SANRAL Act is illegal and unlawful.

[16] As I understand the Respondent's argument, it does not dispute the Applicant's interpretation of the provisions of the SANRAL Act. The Respondent instead, contends that the correspondence between it and the Applicant gives rise to an inference or can be construed that the Applicant has given it "a general permission" to install or lay it's caballing in or on the reserve of the national road. It is this contention of the Respondent and its consequent conduct which has motivated the Applicant to launch the present proceedings.

[17] The founding affidavit makes it clear that there is a dispute between the parties as to the requirements of section 48 of the SANRAL Act. In paragraph 6.1 of the founding affidavit the Applicant alleges that there is a dispute between the parties as to their respective rights which arises when the Respondent places its cables and equipment on land under the control of the Applicant.

[18] When the Respondent applied to the Applicant for permission to place its caballing in or along the national road near the town of Pongola, it is common cause that the Applicant did not respond to the Respondent's aforesaid application. Nevertheless the Respondent continued with its operation and actions without the Applicant's written permission. Although the Applicant concedes that it may well have been remised in not replying to the Respondent's application in the given instance, it was submitted that the Applicant's failure as aforesaid it cannot be construed that there has been compliance with section 48 of the SANRAL Act.

[19] There is thus a dispute between the parties as to whether or not section 48 of the SANRAL Act had been contravened by the Respondent and accordingly the Applicant now seeks a declaritor to that effect.

[20] The case upon which the Applicant seeks adjudication has been properly set out in the founding affidavit and accordingly, in my view the contention raised by the Respondent as set out in paragraph 9 (1) hereof is without merit. [21] The issues raised in paragraph 9 (2) and (3) above are essentially one and the same. It is so that the parties have for some time attempted to negotiate an agreement which would govern the Respondent's rights and obligations vis a vie the Applicant when it installs electronic communication facilities within the road reserve. It is further common cause that there is only one issue still remaining on which no agreement has been reached. That issue is the question of levies or usage fees. The draft document which it is hoped will eventually constitute an agreement or contract forms part of the application papers. At the time when the Applicant launched the present proceedings no agreement as yet had been concluded between the parties. [22] The document upon which the Respondent rely as giving rise to the contention that it has "general permission" from the Applicant is inchoate and not final. The correspondence upon which the Respondent rely demonstrate that the parties are not ad idem on the state of their present relationship. In my view neither the inchoate document nor the correspondence between the parties can give rise to inference or construction that the Applicant has granted the Respondent "general permission'* to construct or install it's electronic communication facilities within the road reserve. Whatever emphasis the Respondent may place on the inchoate document or the inferences to be drawn from the correspondence there is not basis to contend that the Applicant has granted written permission to the Respondent as required by section 48 of the SANRAL Act. In my view the section expressly requires that written permission be given by the Applicant to any party, if such a party intends placing, constructing, or laying cables and equipment on land under the control of the Applicant. [23] In the result I am persuaded that the Applicant is entitled to the declarator for which it contends. [24] The order that will issue is as follows: 1. That it is declared that: (a) Any actions by the Respondent as licensee in terms of the Electric Communication Act No. 36 of 2005 in terms of section 22 thereof or otherwise in respect of land under the control of the Applicant in terms of the South African National Roads Agency Limited and National Roads Act No. 7 of 1998 requires the permission of the Applicant in terms of section 48 thereof; (b) Absent of such permission granted in terms thereof, the action of the Respondent in respect of the said land are of illegal and unlawful. (c) Any such permission granted by the Applicant in its discretion may be subject to the prescriptions referred to in section 48 (3) (b) of the South African National Roads Agency Limited and National Roads Act No. 7 of 1988. 2. The Respondent is ordered to pay the cost of the application, such cost to include the cost of senior counsel. Absent of such permission granted in terms thereof, the action of the Respondent in respect of the said land are of illegal and unlawful.

Any such permission granted by the Applicant in its discretion may be subject to the prescriptions referred to in section 48 (3) (b) of the South African National Roads Agency Limited and National Roads Act No. 7 of 1988. 2. The Respondent is ordered to pay the cost of the application, such cost to include the cost of senior counsel.

[20] The case upon which the Applicant seeks adjudication has been properly set out in the founding affidavit and accordingly, in my view the contention raised by the Respondent as set out in paragraph 9 (1) hereof is without merit.

[21] The issues raised in paragraph 9 (2) and (3) above are essentially one and the same. It is so that the parties have for some time attempted to negotiate an agreement which would govern the Respondent's rights and obligations vis a vie the Applicant when it installs electronic communication facilities within the road reserve. It is further common cause that there is only one issue still remaining on which no agreement has been reached. That issue is the question of levies or usage fees. The draft document which it is hoped will eventually constitute an agreement or contract forms part of the application papers. At the time when the Applicant launched the present proceedings no agreement as yet had been concluded between the parties.

[22] The document upon which the Respondent rely as giving rise to the contention that it has "general permission" from the Applicant is inchoate and not final. The correspondence upon which the Respondent rely demonstrate that the parties are not ad idem on the state of their present relationship. In my view neither the inchoate document nor the correspondence between the parties can give rise to inference or construction that the Applicant has granted the Respondent "general permission'* to construct or install it's electronic communication facilities within the road reserve. Whatever emphasis the Respondent may place on the inchoate document or the inferences to be drawn from the correspondence there is not basis to contend that the Applicant has granted written permission to the Respondent as required by section 48 of the SANRAL Act. In my view the section expressly requires that written permission be given by the Applicant to any party, if such a party intends placing, constructing, or laying cables and equipment on land under the control of the Applicant.

[23] In the result I am persuaded that the Applicant is entitled to the declarator for which it contends.

[24] The order that will issue is as follows:

1. That it is declared that:

(a) Any actions by the Respondent as licensee in terms of the Electric Communication Act No. 36 of 2005 in terms of section 22 thereof or otherwise in respect of land under the control of the Applicant in terms of the South African National Roads Agency Limited and National Roads Act No. 7 of 1998 requires the permission of the Applicant in terms of section 48 thereof;

(b) Absent of such permission granted in terms thereof, the action of the Respondent in respect of the said land are of illegal and unlawful.

(c) Any such permission granted by the Applicant in its discretion may be subject to the prescriptions referred to in section 48 (3) (b) of the South African National Roads Agency Limited and National Roads Act No. 7 of 1988.

2. The Respondent is ordered to pay the cost of the application, such cost to include the cost of senior counsel.

Absent of such permission granted in terms thereof, the action of the Respondent in respect of the said land are of illegal and unlawful.

Any such permission granted by the Applicant in its discretion may be subject to the prescriptions referred to in section 48 (3) (b) of the South African National Roads Agency Limited and National Roads Act No. 7 of 1988.

Date of Hearing : 11 August 2010 Date of Judgment: 25 October 2010 Counsel for the Applicant: Advocate A J Dickson SC Instructed by: PKX ATTORNEYS Counsel for the Respondent: Advocate Maritz CS Instructed by: Mahlangu Incorporated

Date of Hearing : 11 August 2010

Date of Judgment: 25 October 2010

Counsel for the Applicant: Advocate A J Dickson SC

Instructed by: PKX ATTORNEYS

Counsel for the Respondent: Advocate Maritz CS

Instructed by: Mahlangu Incorporated