Security Complexes: Can You Use Telkom Ducting for Fibre?
Laying new underground ducting will mean a lot of cost and a lot of disruption, so you’ll want to use existing infrastructure if you can, and Telkom’s ducting is likely to be a prime candidate. But before you rush ahead and use it, consider this recent High Court decision which confirms that Telkom has the right to control who uses its ducting and other equipment and who doesn’t:
- Telkom had, during the initial development of a residential security estate, installed copper cables to individual houses via ducts and associated manholes.
- The Home Owners Association (HOA) was unable to agree with Telkom on the provision of fibre to the estate and gave the contract to Vodacom, which then asked Telkom for its consent to share its ducting system. A dispute arose as to whether Telkom was obliged to share its facilities, and this was referred to the Independent Communications Authority of South Africa (ICASA) for resolution.
- Before ICASA had resolved the dispute, the HOA went ahead and allowed Vodacom to use Telkom’s ducting, with the result that Telkom applied to the High Court for a “spoliation order” restoring possession of its ducting to it.
- The Court ordered that – pending resolution of the dispute by ICASA - the HOA had to restore possession of the ducting to Telkom, and Vodacom had to remove all its cabling and equipment.
What we do know, for now at least, is that Telkom has been confirmed as being the legal “possessor” of such ducting despite it being installed on private land and irrespective of who has legal ownership. And since our law does not allow you to deprive a possessor of possession without consent or legal process, you need Telkom’s approval before you allow another supplier to use its ducting.
Importantly, the Court also confirmed that Telkom has a statutory right to demand access to the ducting, subject only to it exercising that right “respectfully and with due caution”.