A recent Johannesburg High Court ruling clarifies the legal responsibilities of telecoms companies when their fibre connections are damaged by municipal actions, highlighting crucial steps for affected parties
Image: Ron/Ai
A recent court case in the Johannesburg High Court has shed light on what happens when a fibre connection is destroyed through Johannesburg Water’s actions, or that of one of its contractors.
Burst water pipes that then require streets digging up to repair them are a known occurrence in the area, with the City conceding in the 2018/19 financial year that 42 977 pipe bursts occurred.
These are the latest figures Fast Company could locate.
A decision, handed down on Wednesday, explained that telecoms companies need to sue under one law, the Institution of Legal Proceedings Against Certain Organs of State Act, and not any other.
Dark Fibre Africa (DFA), which owns and controls a network of underground fibreoptic cables that it rents to other companies, alleges that Johannesburg Water, or its contractors, negligently damaged one of Dark Fibre’s cables while performing work on an underground water pipe in Greenside, Johannesburg.
The fibre company, which is owned by Maziv, instituted proceedings in the Johannesburg Regional Court claiming just over R320 000 for what it said was the reasonable cost of repairing the damage caused.
Where DFA went wrong, the judgement said, is that it didn’t, within six months of the debt occurring, deliver a “notice setting out the facts giving rise to the debt and the particulars of the debt insofar as these are known to the claimant” to Johannesburg Water under the Legal Proceedings Act.
DFA had initially argued that, because Johannesburg Water was not an organ of state, it didn’t need to provide the utility with the specific notice in terms of the Legal Proceedings Act.
The Johannesburg High Court disagreed, stating that Johannesburg Water falls within the definition of “organ of state” because it carries out its duties on behalf of the municipality. In addition, because its assets and liabilities are the City’s assets and liabilities.
“For that reason, Johannesburg Water’s liabilities are ultimately underwritten by the state itself,” said the judge. As a result, the state would need to sort out the claimed debt and, because of this, requires the notice of debt be filed within six months, the judgement noted.
However, DFA was not completely sent packing.
DFA did have to pay Johannesburg Water’s costs because the utility had appealed a magistrate’s decision that it was not an “organ of state”. However, it can now return to the lower court and start proceedings over after first asking that court to condone the fact that it did not first provide the required notice.
“Dark Fibre must now ask the court below to condone its failure to give the notice section 3 of the Legal Proceedings Act requires. The court below will grant that application if good cause has been shown, if Dark Fibre’s claim has not prescribed, and if Johannesburg Water was not prejudiced by the failure to give notice. On the facts of this case, these seem to me to be slight hurdles indeed,” the judgement read.
Yet: “Dark Fibre’s action should be stayed until the court has had an opportunity to answer it,” said the judge.