Telkom and Openserve are accused of unlawfully using network infrastructure of another provider to offer fibre broadband services.
The unlawful use of network infrastructure was discovered during the recent R30 million upgrade of the fibre optic cable network in Midstream Estate.
To fully understand the situation, it is necessary to go back to the early 2000s when Midstream Estate was in the development stage.
During this phase, the developer Bondev registered servitude for the installation and maintenance of a telecommunications network.
It built a primary set of sleeves to provide telecoms services in the estate. A separate set of sleeves were also installed by Bondev and handed to Telkom for their purposes.
Over time the Telkom sleeves network and connection pits were extended, and fibre optic cables were installed by contractors under the instruction of Telkom and Openserve.
Supersonic, a subsidiary of MTN, entered into a long-term agreement with Bondev in 2016 to use the primary set of sleeves and kiosks to install fibre and provide broadband access to Midstream residents.
In 2018 Supersonic made important changes to its service in Midstream Estate. This included upgrading the entire fibre optic cable network.
What was discovered during this upgrade was that Telkom/Openserve or their sub-contractors unlawfully used the Bondev sleeve network and kiosks to provide services.
Midstream Estate said these unlawful connections must now be removed from the Bondev and Supersonic infrastructure.
This is needed to “prevent future unauthorised and unlawful access to either the sleeves or kiosks which may lead to damage of the expensive network installed”.
A challenge is that the cables through the kiosks are unlabelled which made it impossible to identify these irregular cables.
They are now removed in bulk, along with the legacy cables of Supersonic.
This is causing service interruption to houses where Telkom/Openserve unlawfully used Bondev’s infrastructure.
“In a few instances, contractors took matter into their own hands and damaged or vandalised some of the kiosks,” the manager added.
He said a process has started to claim damages from the parties involved.
Another problem is that Telkom contractors, in some cases, used the Supersonic fibre to pull Openserve fibre into homes.
They allegedly broke open the Bondev kiosks and unlawfully used this infrastructure to serve their needs.
This causes damage to the Supersonic fibre network and resulted in downtime for clients.
Telkom responded to the allegations, saying Openserve has the largest fibre infrastructure in South Africa and does not occupy other operator’s infrastructure without agreement.
It said Openserve has legal access to roll out fibre infrastructure in Midstream Estate and has its own conduits in the estate.
It explained Midstream Estate has a unique situation of two telecommunications infrastructures which creates the confusion.
In some instances, due to poor identification of conduits, operators lay infrastructure in the wrong ducts.
“The agreement in Midstream Estate with the operators is to correct this following the issue of a 7-day notice,” it said.
What is interesting about this case is that Telkom has previously launched a legal challenge against Vodacom for the unlawful use of Telkom infrastructure in the Dennegeur residential estate.
This came after the Homeowners’ Associations of 15 private residential estates in the Western Cape invited Vodacom to install fibre in their complexes.
Telkom already had underground conduits in these estates which it used for telephone lines and ADSL services.
Vodacom asked Telkom to use its ducts, but Telkom refused. It argued it was not obliged to share its infrastructure.
Vodacom installed fibre in these ducts anyway, which resulted in a protracted legal battle between the two parties.
Vodacom also filed a complaint with the Independent Communications Authority of South Africa (ICASA) regarding Telkom’s unwillingness to enter into a Facilities Leasing agreement.
ICASA determined that the sharing of duct infrastructure in these estates was “technically and economically feasible”, and “promoted the efficient use of networks and services”.
The legal battles also went Vodacom’s way.
The Western Cape High Court initially ruled that Vodacom unlawfully accessed its duct infrastructure, but this ruling was overturned by the Supreme Court of Appeal (SCA).
The SCA ruled that Telkom did not possess the infrastructure which formed part of Dennegeur, but that it was owned, occupied, and controlled by the Home Owners Association.
Telkom tried to fight this ruling, but the SCA denied Telkom leave to appeal. The ruling effectively forces Telkom to share its cable ducts with competing fibre network operators.
It is interesting that Telkom was therefore simultaneously using other operators’ infrastructure and trying to declare others using its infrastructure unlawful.