On 22 July 2020, the Minister for Communications and Digital Technologies, Ms Stella Ndabeni-Abrahams, published a policy and policy direction in Government Notice 800 in GG 43537, dealing with the Electronic Communications Act 36 of 2005. This included an invitation to members of the public to provide written comments on proposed policy and policy direction on rapid deployment of electronic communications networks and facilities:
‘The purpose of the proposed policy is to provide clarity on the deployment of electronic communications networks and facilities. The purpose of the proposed policy direction is to direct the Authority to prescribe regulations on procedures and processes for resolving disputes that may arise between an electronic communications network service licensee and any landowner, in order to satisfy the public interest in the rapid rollout of electronic communications networks and electronic communications facilities.’
UP Law’s Dr Gustav Muller in the Department of Private Law at the University of Pretoria (UP) used the opportunity to make a submission to the Minister via the Acting Director-General of the Department of Communications and Digital Technologies on the proposed policy on the rapid deployment of electronic communications networks and facilities.
In his proposal to the Minister, Muller elucidated on (1) rights and obligations, (2) principle of cooperative governance, (3) a firm distinction between causing “damage” to property and paying “damages” for the “damage” caused, (4) access fees, (5) deployment fees, (6) compensation for damaged caused, (7) disputes and complaints, and (8) regulations.
Muller subsequently disseminated his letter to his network on LinkedIn, which was noticed by the Chair of the Gauteng Attorneys’ Association (GAA), Ms Chantelle Gladwin-Wood, who in turn invited Muller to speak at the GAA’s 3rd Annual General Meeting on the policy as it pertains to property law, and more specifically statutory servitudes in terms of the Electronic Communications Act and the potential of expropriation in this regard.
During this session on 15 October 2020, Muller presented a paper on a panel with Professor Sue-Mari Viljoen (UWC) and the Judge President of the Gauteng Division of the High Court, Judge Dunstan Mlambo. Muller essentially repeated his argument during this event, including two expansions: (a) that the infrastructure for information and communication technology can also be acquired in terms of expropriation (which is entirely absent from the policy direction of the Minister); and (b) that in exercising these servitudes civiliter modo a servitude holder must not impose an unreasonable burden on the servient owner.
Muller states that it is curious that the Draft Policy makes no mention of the possibility to utilise the expropriation powers of the state for the rapid deployment of electronic communications networks and facilities. Section 8(1) of the Expropriation Act 63 of 1975 states that it is possible to acquire existing and new servitudes by way of expropriation separate of expropriating the entire immovable property.
It is further curious that the expropriatory powers of the state is not mentioned because section 5 of the Infrastructure Development Act 23 of 2014 specifically empowers the Presidential Infrastructure Coordination Commission to expropriate land for strategic integrated projects. To that end Schedule 1 of the Infrastructure Development Act specifically mentions 'Communication and information technology installations' and Schedule 3 specifically includes a strategic integrated project 'SIP 15: Expanding access to communication technology'.
Muller further notes that the Minister of Public Works also recently published GN 812 in GG 43547 on 24 July 2020 regarding 'Strategic Integrated Project No 22: Digital Infrastructure'. In his view, all these possibilities should be included in the Draft Policy not only to make provision for a comprehensive approach to the rapid deployment of electronic communication networks and facilities, but also to improve the articulation of the public purpose of and enhance the justification for the rapid deployment.
'The purpose of the principle of civiliter exercise is to protect the owner against the negative effects that the exercise of the servitude could have on the ownership of the servient land. These negative effects typically manifest as unnecessary or unwarranted burdens on the servient land that are not necessary for the effective use of the servitude, nor included (specifically or tacitly) in the agreement or grant. The function of the civiliter principle is to ensure that the servient property is not burdened by a gratuitous exercise of the servitude that has been created. In other words, the civiliter principle regulates the reasonable exercise of a servitude. This requires that a balance must be struck between the servitude holder’s right to effective use and the residual rights of the servient owner to the property to the extent that this does not interfere with servitude holder’s use.'
The Constitutional Court employed this principle in City of Tshwane Metropolitan Municipality v Link Africa 2015 (6) SA 440 (CC), but elided a principled engagement with this principle in Telkom SA SOC Limited v City of Cape Town and Another  ZACC 15 (25 June 2020) altogether.
‘Simply put, my argument is that without filtering these rights through the civiliter principle the court infuses an unhealthy paleness into the servitutal relationship that will not be able to withstand the pressure as the drive intensifies for the rapid deployment of ICT network infrastructure.’, Muller concluded.