City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd (CCT184/14) [2015] ZACC 29 (23 September 2015) per Cameron J and Froneman J.


On appeal from the Supreme Court of Appeal (hearing an appeal from the Gauteng Division of the High Court, Pretoria)

:#1Leave to appeal is granted;

#2The appeal is dismissed;

#3The City of Tshwane Metropolitan Municipality is ordered to pay the costs of Link Africa (Pty) Limited.

CC Summary:           

#1Electronic Communications Act 36 of 2005 — constitutionality of sections 22 and 24 — provisions valid;

#2Statutory interpretation — “due regard to applicable law” —common law of servitudes — civiliter modo; 

#3Section 25 of the Constitution — private property owner — deprivation — not arbitrary

Majority: CAMERON J and FRONEMAN J (Khampepe J, Madlanga J, Molemela AJ and Theron AJ concurring) and Minority: JAFTA J and TSHIQI AJ (Moseneke DCJ and Nkabinde J concurring)


[100] We have had the benefit of reading the minority judgment of Jafta J and Tshiqi AJ.  We agree that leave to appeal and the applications for intervention must be granted.  But we disagree that sections 22 and 24 of the Act[footnote omitted] are constitutionally invalid.  Less even is the whole of Chapter 4 invalid.  The minority judgment finds that the statute permits an arbitrary deprivation of property.  That is to us incorrect.  Our jurisprudence says that courts must adopt a reasonable interpretation of legislation that avoids its invalidity.  That jurisprudence is based, in part, on respect for the role of the Legislature.  It must prevail here.  The statute at issue is not invalid.  It is a beneficial intervention by the Legislature that deserves to be given the validity and power Parliament designed for it. And that can be done without any strain to our existing law.

. . . .

[133]    The common law rule is generally expressed in the notion that one may enter property only with consent of the property owner.   Stated in this barefaced way, this may seem to run counter to section 22(1) of the Act.   But that is only the general rule.   It is where we start.   Not where we stop.   The common law is far more nuanced.   This the common law on servitudes shows.   It showers the question of statutory construction before us with flexible and equitable principles that protect the servient owner.

[134]    It may well be that a statute prevails over the common law when the two are in irresoluble conflict.   That is not so here.   Longstanding authority points to a subtler path rather than brute primacy.   For well over a century, courts have insisted that common law and statute must as far as reasonably possible be read in harmony.   And we show below that the common law on servitudes can reasonably be read in harmony with section 22(1).   There is no question of conflicting statutory provisions “trumping” the common law.   So the common law is “applicable law” – and “due regard” must be had to it.   These lessons lie deep in our legal history, and the Constitution enjoins us to apply them to the legislation of our modern democracy.