Ndlambe Local Municipality v Hero Telecoms (Proprietary) Limited and Others (784/2021) [2021] ZAECGHC 31 (23 March 2021)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO. 784/2021

In the matter between:

NDLAMBE LOCAL MUNICIPALITY

Applicant

and

HERO TELECOMS (PROPRIETARY) LIMITED

First Respondent

PRITSTER HOLDINGS t/a GROUNDWORK SOLUTIONS

Second Respondent

FROGFOOT NETWORKS (PROPRIETARY) LIMITED

Third Respondent

IGUGU HOLDINGS (PROPRIETARY) LIMITED

Fourth Respondent

JUDGMENT

Bloem J.

1. This is an application for an interim interdict pending the outcome of a review application. The applicant is a local municipality (the municipality). The first respondent (Herotel) is a telecommunications company. The second respondent (Groundworks) is a company that Herotel appointed as a wayleave provider. The third and fourth respondents are companies which are wayleave applicants for a fibre optic cable project roll-out program. The third and fourth respondents were joined in these proceedings only insofar as they may have an interest. They have not opposed the application for an interim interdict. Reference to “the respondents” in this judgments will be reference to

the first and second respondents.

2. On 12 March 2021 the municipality launched an application for relief sought in two parts. In Part A it seeks an order that, pending the finalisation of the review application in Part B, the respondents be interdicted and restrained from construction and trenching required to install the fibre infrastructure (the works) in its area. In Part B it will seek an order that its approval of Herotel’s application for a wayleave be set aside and that its permission to Herotel to undertake the works be declared unlawful and set aside. This judgment is in respect of the application for relief under Part A only.

3. The respondents’ case is that on 26 and 27 October 2020 Herotel, through Groundworks, applied to the municipality for a wayleave in order to undertake the works. Groundworks was informed by one of the municipality’s employees on 4 November 2020 that the application was approved on 27 October 2020. Herotel then appointed architects to manage the works. It invested R9 million purchasing components, equipment, labour and specialist services to install the fibre infrastructure. The works commenced early in February 2021. It is not disputed that the works have been completed on 18km of the planned route, with only 3km of further works to complete the installation.

4. The municipality’s case is that on 26 October 2020 two males were looking for Vithi Masiza, the municpality’s Director of Infrastructure, about a wayleave agreement. Ms Masiza was unavailable and her personal assistant, Anelisa Klaas, referred the men to Sipho Babama, one of the municipality’s Deputy Directors of Infrastructure. After some time at Mr Babama’s office the men returned to Ms Klaas and requested Mr Babama’s

email address. On 27 October 2020 Groundworks addressed an email to Mr Babama, copied to Ms Masiza, to which a wayleave application was attached. The application was to roll-out and install fibre-to-the-home to all the residents of Port Alfred.

5. On that same day Ms Klaas typed a letter on behalf of Mr Babama and addressed to Groundworks wherein it was stated “that the Municipality [approved the application for wayleave, reference HTT20-0027] on condition that the municipal infrastructure where the underground cable will be installed be reinstated to its original state”, that Groundworks should take care not to damage municipal infrastructure while performing the essential service and that all municipal infrastructure should be reinstated to its original state after the completion of the works. Ms Klaas left the unsigned letter in Mr Babama’s office. Another Deputy Director of Infrastructure, Thulani Maluleke, signed the letter and other documentation “apparently, according to him, not realising that he was signing an important consent for a project of this nature”.

6. On 2 February 2021 Mr Babama noticed a contractor digging trenches in one street in Port Alfred. He made enquiries in that regard and was informed about Ms Klaas and Mr Maluleke’s above involvement in granting the permission. A meeting was arranged for 4 February 2021 between Mr Babama, Mr Maluleke and Gareth Brown, a director of Groundworks. After that meeting Mr Maluleke sent an email to Mr Brown confirming that the wayleave to install fibre infrastructure “was approved by error” as the municipality was in the process of compiling a policy in that regard; the municipality requested the respondents to suspend “the trenching activities” in Port Alfred until the policy had been approved by the municipality’s council; Groundworks would revert to the municipality regarding the suspension of the works until further notice; and Groundworks would provide the municipality with a proposal to indicate how the completed works would be dealt with.

7. Later that same day Mr Brown responded by email addressed to Mr Maluleke and copied it to inter alia Mr Babama, Ms Masiza and Mlungisi Klaas, the municipality’s Chief Financial Officer. In that email he stated that he had discussed the topics of discussion of the meeting with Herotel, that Groundworks was unable to make a decision on behalf of Herotel regarding the requested suspension of the works and that the municipality should consult Herotel directly. A further meeting was scheduled for 8 March 2021. It was attended by Mr Klaas, Ms Masiza, Mr Maluleke, Mr Brown and Daniel de Bruyn, Herotel’s Head of Fibre. The municipality’s position was articulated clearest by Ms Masiza who stated that the process should be started from scratch. She explained that the respondents should have had a meeting with the municipality’s administrators to present exactly what they intend doing, how the project would benefit the municipality and that the application for wayleave would then be taken to the municipality’s council “of which I do not know what will be the stand of the council”. Mr Brown and Mr de Bruyn undertook to put together a proposal and “we will schedule another meeting with you”. Mr Maluleke concluded the meeting by stating that the municipality was awaiting the respondents’ proposal as they need to “go back to our council with your proposal”.

8. On 19 February 2021 the municipal manager of the municipality addressed a letter to Mr Brown wherein reference was made to the engagements between the respondents and the municipality, that the municipality noted that the respondents (in fact Herotel’s contractor) were continuing with the works “although it was made clear in our meetings that your wayleave application(Ref: HTT20-0027) was approved by error, therefore all operations should be stopped with immediate effect”; and demanded that the works should be suspended until the municipality’s council has approved its (until then non-existent) policy in that regard. The respondents were also invited to provide the municipality with a proposal on how they intend to roll out the fibre installation.

9. Herotel’s Chief Operating Officer, Helmut Nel, responded by letter dated 22 February 2021. He stated that Herotel followed the provisions of the Electronic Communications Act[1] and complied with the municipal process of wayleave notification and that it cannot be unreasonably frustrated to the detriment of the residents of Port Alfred and Herotel’s commercial interests. By letter dated 24 February 2021 the respondents’ attorneys informed the municipal manager that the municipality validly granted Herotel’s wayleave, that they rely on it as it was enforceable, that the wayleave will continue to exist until set aside following due process. The municipality then instructed its attorneys.

10. A meeting, scheduled for 26 February 2021, took place on that day between the attorney and the municipal officials. There was a request for more documents to be made available. Those documents were delivered to the municipality’s attorney on 8 March 2021 whereafter he investigated issues “relating to the erroneous consent”. On that same day the municipality’s attorney informed the respondents’ attorney by email that the person who granted the permission upon which Herotel relies, did not have the authority to do so and demanded an undertaking by 9 March 2021 that the respondents would not continue with the works pending the outcome of a review application, failing which an application of this nature would be instituted. In her letter dated 11 March 2021 the respondents’ attorney informed the municipality’s attorney inter alia that Herotel agreed “to suspend civil until works until close of business on Friday, tomorrow. If your client agrees to the meeting on the basis proposed, our client agrees that it will resume its civil works on the terms agreed on 15 March 2021”. The municipality launched the application on the following day.

11. The court has to decide at this stage whether or not it should, pending the finalisation of the review application, interdict Herotel from continuing with the works. The municipality accordingly seeks an interim interdict. An applicant for the grant of an interim interdict must establish: (a) a prima facie right even if it is open to some doubt; (b) a well-grounded apprehension of irreparable harm if the interim interdict is not granted and the ultimate relief is eventually granted; (c) the balance of convenience favours the grant of the interim interdict; and (d) the absence of any other satisfactory remedy.[2]

12. Ms Hobden, counsel for the respondents, submitted that the municipality has not satisfied any of the above requirements. The lawfulness of the wayleave is a matter to be ventilated during the review application. At this stage it is relevant only in the determination of whether the municipality has established a prima facie right.

A prima facie right even if it is open to some doubt.

13. Section 19 of the municipality’s Roads and Traffic By-Law provides for work in streets and public places within the area of the municipality. Section 19(1) provides as follows:

“No person may without the prior written permission of the municipality and subject to any conditions that may be imposed undertake any work in a street or public place.”

14. In terms of that subsection no work may be undertaken in a street or public place within the area of the municipality unless the municipality has given prior written permission for the work to be undertaken. Where such written permission has been given conditionally, no work may be undertaken until the conditions have been fulfilled. The respondents’ case is that, because Herotel has secured the municipality’s permission to undertake the works, the municipality has failed to establish a prima facie right worthy of protection. The municipality’s case is that the written permission granted by it was not properly granted,

hence the review application. It contends that, absent the impugned written permission, Herotel has no right to undertake the works. It is that right, to ensure that no works is undertaken by Herotel in the streets or public places of Port Alfred, that it seeks to protect.

15. I am satisfied that the municipality has established, on a balance of probability, a prima facie right even though it is open to some doubt. The reason for that finding is primarily the circumstances under which the permission was sought and given. The respondents’ case is that Mr Brown and his wife attended the municipality’s offices on 26 October 2020 to enquire as to the process for applying for a wayleave. He was referred to Ms Klaas who informed him that Ms Masiza and Mr Babama were responsible for wayleave applications and that any wayleave application should be sent to them directly. Mr Brown, who was in possession of a hardcopy of Herotel’s wayleave application, gave it to Ms Klaas who undertook to leave it on Mr Babama’s desk. She informed Mr Brown that he would be contacted by either Ms Masiza or Mr Babama.

16. On 27 October 2020 Mr Brown sent an email to which a wayleave application was attached to Ms Klaas. He also sent a similar email to Ms Masiza and Mr Babama with the request for a meeting. It was only on 4 November 2020 that Mr Brown was informed by Ms Klaas that the wayleave application had been approved.

17. Having taken into account the facts set out by the municipality, especially the role played by Ms Klaas and Mr Maluleke, together with the facts set out by the respondents, which the municipality cannot dispute, it is probable, in my view, that Mr Maluleke signed the letter typed by Ms Klaas without realising that he gave permission to Herotel to undertake the works. That finding is supported by the deliberations during the meetings on 4 and 8 February 2021 respectively.

18. In the meeting on 4 February 2021 it was Mr Maluleke who pointed out that the municipality did not have a policy dealing with wayleave applications and that any application in that regard should accordingly await approval of policy by the municipality’s council. It is unlikely that Mr Maluleke would have approved Herotel’s application for wayleave on 27 October 2020 when he knew at that stage that the municipality did not have a policy in that regard. Furthermore, there is no indication that Herotel’s application for wayleave was considered before it was granted. The municipality’s case is that Mr Maluleke did not consider the application before he signed the letter that was typed by Ms Klaas. The respondents cannot refute that version. Accordingly, it is probable that it would be found in the review application that the municipality did not grant permission to Herotel for the works to be undertaken.

19. In the circumstances, I am satisfied that the municipality has established that it has a prima facie right to ensure that, absent a properly issued written permission, no work is undertaken by Herotel in the streets and public places of Port Alfred.

A well-grounded apprehension of irreparable harm if the interim interdict is not granted and the ultimate relief is eventually granted.

20. In the municipality’s founding affidavit its municipal manager stated in this regard that the “municipality and its citizens have been substantially prejudiced by the actions of Herotel and Groundworks, and will suffer irreparable harm if interdictory relief is not granted, and there is no alternative remedy available to the municipality and its citizens”. In my view, there is no factual basis for the allegation that the municipality and its citizens will suffer irreparable harm if the interim interdict is refused. Ordinarily that would have been a fatal omission.

21. The nature of the relief sought is that, pending the finalisation of the review application, Herotel should not undertake any work in the streets or public places of Port Alfred. Section 19 of the above By-Law places the municipality in the position of an owner or bona fide possessor of the streets and public places of Port Alfred. What the municipality seeks is an order protecting its ownership or possession of the streets and public places of Port Alfred pending the outcome of the review application. In the case for an interdict to recover or protect ownership pending a vindicatory action or application, an applicant need not show that he will suffer irreparable harm if the interim interdict is not granted.[3] An interim interdict may also be granted to an applicant who has established a prima facie right to the possession of a thing but who has not demonstrated that irreparable harm would be suffered without an interim interdict, the rationale being that the court is entitled to ensure the preservation of the thing until the dispute has been decided.[4] There is accordingly a presumption that the harm to the municipality will be irreparable unless the interim interdict is granted. Herotel has not rebutted that presumption. In the circumstances, the municipality was relieved of the necessity of proving irreparable harm.

The balance of convenience favours the grant of the interim interdict.

22. In this regard the court must balance the prejudice that the municipality will suffer if the interim interdict is refused against the prejudice that Herotel will suffer if the interim interdict is granted. Herotel stressed that it must complete only 3km of the works, having already completer 18km of the works. Ms Hobden submitted that the prejudice to Herotel in the event of the interim interdict being granted far outweighs the alleged harm that the municipality contends for. Counsel pointed out to the resources that Herotel invested in the project.

23. In my view, if the interim relief is refused and the review application ultimately granted, the effect would be that the works would have been undertaken without permission, contrary to the provisions of section 19 of the above By-Law. It would be unlawful because the by-law requires work to be undertaken only where prior permission has been granted. If the interim relief is granted and the review application is ultimately refused, Herotel can then proceed with the works. That being the case, the balance of convenience favours the granting of the interim interdict.

The absence of any other satisfactory remedy.

24. The respondents’ case was that it was unnecessary for the municipality to approach the court for interim relief because the municipality could have accepted the undertakings and proposals made by Herotel. The effect of the undertakings and proposals made by Herotel would have had the effect that the works would have been completed by Herotel. The municipality did not want Herotel to proceed with the works until an application for wayleave in that regard was approved by the municipality’s council in terms of a policy (still to be approved by its council) in that regard. In my view, the municipality had no alternative satisfactory remedy.

Urgency.

25. The respondents contended that the matter was not urgent, alternatively that the urgency was self-created. Although the municipality could have dealt with the application with more urgency after Mr Babama noticed the digging in Smith Street, Port Alfred on 2 February 2021 until the application was launched on 12 March 2021, I am satisfied that, although the respondents have been inconvenienced by the time periods within which they had to deliver documents, they were not unduly prejudiced and the application was sufficiently urgent to be dealt with as such. Since Herotel probably undertook the works without proper permission from the municipality and would have continued to do so without intervention from this court, there was a need for this court to entertain the application on an urgent basis.

Costs.

26. The court deciding the review application will obviously scrutinise the parties’ conduct before the impugned permission was granted. It might accordingly be premature to make a costs order relating to the interim interdict at this stage.

27. In the result, it is ordered that:

27.1. Pending the finalisation of the review application contemplated in Part B of the notice of motion, the first respondent and any party contracted by it, be and are hereby interdicted and restrained from undertaking the construction and trenching on the streets and public places of Port Alfred for the purposes of installing fibre infrastructure.

27.2. The costs occasioned by the application for an interim interdict be and are hereby reserved for determination by the court hearing the review application referred to in paragraph 1 above.

G H BLOEM

Judge of the High Court

For the applicant:

Mr A Beyleveld SC, instructed by Wheeldon Rushmere & Cole Inc, Grahamstown.

For the first and second respondents: Ms F Hobden, instructed by Cliffe Dekker Hofmeyr, Johannesburg and Nolte Smit Inc, Grahamstown.

Date heard:

18 March 2021.

Date of delivery of the judgment:

23 March 2021.

[1] Electronic Communications Act, 2005 (Act 36 of 2005).

[2] National Treasury and others v Opposition to Urban Tolling Alliance and others 2012 (6) SA 223 (CC) at par 41.

[3] Kilroe v Kilroe 1928 WLD 112 at 114 to 115.

[4] Fedsure Life Assurance Co Ltd v Worldwide African Investment Holdings (Pty) Ltd and others 2003 (3) SA 268 (W) at 278D.