Port Alfred fibre project halted

Ndlambe Municipality has obtained an interdict in the Grahamstown High Court preventing Herotel from continuing with its internet fibre project in Port Alfred.

One of Herotel’s access ports for the fibre it laid in a trench along Atherstone Road – the first arterial road it laid fibre in for its Port Alfred network

The municipality was granted the temporary interdict pending a review application, claiming that Herotel was given “unlawful” approval for a wayleave to lay fibre and erect poles, by a deputy director who had no authority to do so.

The second respondent in the case is Groundworks, a company that Herotel appointed as a wayleave provider.

Two other internet fibre companies, Frogfoot Networks and Igugu Holdings, were also added as respondents only insofar as they may have an interest in the case.

Ndlambe launched the application for an interdict on March 12 after more than a month of discussions with Herotel regarding the approval which the municipality says was mistakenly granted.

According to the court papers, Herotel first applied to the municipality on October 26 and 27 last year for a wayleave to undertake works on their network infrastructure.

Groundworks was informed by one of the municipality’s employees on November 4 2020 that the application had been approved on October 27.  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,” Judge Gerald Bloem said in his judgment.

The municipality submitted in court that on October 26 two men had been looking for Ndlambe infrastructural development director Noluthando Vithi-Masiza about a wayleave agreement. Vithi-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 Babama’s office the men returned to Klaas and requested Babama’s e-mail address.  On October 27 Groundworks addressed an e-mail to Babama, copied to Vithi-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.

On that same day, Klaas typed a letter on behalf of 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.

Klaas left the unsigned letter in 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”, the judgment stated.

When Babama noticed a contractor digging trenches in a street in Port Alfred on February 2, he made enquiries and was informed about Klaas and Maluleke’s involvement in granting the permission.  A meeting was arranged for February 4 between Babama, Maluleke and Gareth Brown, a director of Groundworks.  After that meeting Maluleke sent an e-mail to 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 Herotel and Groundworks to suspend “the trenching activities” in Port Alfred until the policy had been approved by the Ndlambe council.

Groundworks was also asked to provide the municipality with a proposal to indicate how the completed works would be dealt with.

Brown responded later that same day, saying 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.

Another meeting on February 8 was attended by Ndlambe finance director Michael Klaas, Vithi-Masiza, Maluleke, Brown and Daniel de Bruyn, Herotel’s head of fibre.

Vithi-Masiza said the process should be started from scratch. According to the judgment, 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”.

Brown and De Bruyn undertook to put together a proposal and schedule another meeting.

On February 19, municipal manager Rolly Dumezweni sent a letter to Brown noting that Herotel and Groundworks were continuing with the works “although it was made clear in our meetings that your wayleave application was approved by error, therefore all operations should be stopped with immediate effect”.

Herotel’s Chief Operating Officer, Helmut Nel, responded by letter dated February 22, stating that Herotel had followed the provisions of the Electronic Communications Act 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 February 24 the respondents’ attorneys informed Dumezweni that the municipality had validly granted Herotel’s wayleave, that they rely on it as it was enforceable, and that the wayleave will continue to exist until set aside following due process. The municipality then instructed its attorneys.

Judge Bloem said he was satisfied that the municipality had “established, on a balance of probability, a prima facie right even though it is open to some doubt”.

“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 February 4 and 8 2021 respectively,” the judge said.

Bloem said the balance of convenience favoured the granting of the interim interdict.

He said a costs order would be reserved for the court deciding the review application.

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