Swiftnet Soc Limited and Another v Peete and Others (UM82/2022) [2024] ZANWHC 256 (15 October 2024)

Swiftnet Soc Limited and Another v Peete and Others (UM82/2022) [2024] ZANWHC 256 (15 October 2024)

The court found that Swiftnet and Telkom acted lawfully in erecting the masts, having obtained all necessary consents from the CPA, municipality, and regulatory authorities. The CPA was authorized to contract for the use of communal land. The urgency claimed by the applicants was not substantiated; the harm alleged was either speculative or had already occurred, as the masts were substantially complete. The applicants failed to establish a prima facie right or reasonable apprehension of irreparable harm. The order granted ex parte was therefore erroneously issued, and the applicants' interests did not outweigh the community's interest in improved telecommunications. The court set aside...

Citation
[2024] ZANWHC 256
Parties
Applicant: Swiftnet SOC Limited; Applicant: Telkom SA SOC Limited; Respondent: Daniel Matshwenyego Peete; Respondent: Sibanda July; Respondent: Tsheole Ntshadi; Respondent: Bakgatla Ba Kgafela Communal Property Association; Respondent: Minister of Agriculture, Land Reform and Rural Development of South Africa; Respondent: Director-General: Agriculture, Land Reform, and Rural Development; Respondent: Premier of the North West Provincial Government; Respondent: Mokotedi Sophy; Respondent: Thebyane Tshepiso
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
15 October 2024
Case Number
UM82/2022
Procedural Posture
Urgent Application / Application for Reconsideration and Rescission of Ex Parte Interim Order
Outcome
The interim order of 05 May 2022 is set aside; the application is struck from the roll for lack of urgency; costs awarded against the applicants.
Judges
Dibetso-Bodibe
Legal Topics
Communal Land Rights, Interim Interdict, Urgent Application Procedure, Electronic Communications Act, Locus Standi, Balance of Convenience
Land and Property Civil Procedure Commercial and Corporate Communal Land Rights Interim Interdict Urgent Application Procedure Electronic Communications Act Locus Standi +1 more

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Parties

Swiftnet SOC Limited

Applicant

Telkom SA SOC Limited

Applicant

Daniel Matshwenyego Peete

Respondent

Sibanda July

Respondent

Tsheole Ntshadi

Respondent

Bakgatla Ba Kgafela Communal Property Association

Respondent

Minister of Agriculture, Land Reform and Rural Development of South Africa

Respondent

Director-General: Agriculture, Land Reform, and Rural Development

Respondent

Premier of the North West Provincial Government

Respondent

Mokotedi Sophy

Respondent

Thebyane Tshepiso

Respondent

Procedural Posture

Urgent Application / Application for Reconsideration and Rescission of Ex Parte Interim Order

Legal Issues

  1. 1 Whether the interim interdict granted ex parte against Swiftnet and Telkom should be reconsidered and rescinded.
  2. 2 Whether Swiftnet and Telkom acted lawfully in erecting telecommunications masts on communal land.
  3. 3 Whether the applicants established urgency and a prima facie right to the relief sought.

Ratio Decidendi

The court found that Swiftnet and Telkom acted lawfully in erecting the masts, having obtained all necessary consents from the CPA, municipality, and regulatory authorities. The CPA was authorized to contract for the use of communal land. The urgency claimed by the applicants was not substantiated; the harm alleged was either speculative or had already occurred, as the masts were substantially complete. The applicants failed to establish a prima facie right or reasonable apprehension of irreparable harm. The order granted ex parte was therefore erroneously issued, and the applicants' interests did not outweigh the community's interest in improved telecommunications. The court set aside...

Court Disposition

The interim order of 05 May 2022 is set aside; the application is struck from the roll for lack of urgency; costs awarded against the applicants.

Orders

  • The order of Snyman J granted on 05 May 2022 is hereby set aside.
  • The application is struck from the roll for lack of urgency.