IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE

CASE NO 516/2000

In the matter between

TELKOM SA LIMITED

Appellant

and

THE MEMBER OF THE EXECUTIVE COUNCIL FOR
AGRICULTURAL AND ENVIRONMENT AFFAIRS:
KWAZULU-NATAL

First Respondent
SARAH JANE ALLAN

Second Respondent
HB STRAUSS

Third Respondent
SPRAY FISHING (PROPRIETRY) LIMITED

Fourth Respondent
THE PRAWN FISHERIES AND DEVELOPMENT
ASSOCIATION

Fifth Respondent
________________________________________________________________________

CORAM:
HOWIE,  SCHUTZ,  NAVSA JJA  HEHER  et  LEWIS AJJA
________________________________________________________________________

Date Heard:
20 August 2002

Delivered:
5 September 2002

Telecommunications - laying of undersea cable - fixed line operator obliged to
obtain lease under Sea-shore Act, 1935.
________________________________________________________________________

J U D G M E N T

________________________________________________________________________

HOWIE JA

HOWIE  JA
[1] The question in this appeal is whether the appellant may lawfully lay a
telecommunications cable on the sea bed in the territorial waters off the
coast of KwaZulu-Natal without the relevant portion of the sea having been
let to it in terms of s 3(1)(m) of the Sea-shore Act, 21 of 1935.   The
appellant says it may.   The first respondent, the Member of the Executive
Council for Agriculture and Environmental Affairs:  KwaZulu Natal and the
'competent authority' who may let under that Act if letting is necessary, says
not.   So does the fifth respondent, The Prawn Fisheries and Development
Association.
[2] There is no need to detail the background facts and circumstances.   It
is enough to say that an undersea cable connection is essential to link the
countrywide telecommunications system which the appellant is statutorily
obliged to provide, and an international undersea telecommunications cable

network recently installed at very considerable cost to all the countries it
serves.   The relevant stretch of the international cable lies off the South
African east coast.   The function of the appellant's cable is to connect the
international cable to an on-shore installation at Mtunzini.   The existence of
a connecting cable is therefore a matter of obvious major importance not
only to the appellant but to the country.
[3] The first respondent's objection is that the appellant claims to need no
lease.   The fifth respondent's complaint is that the cable route chosen by the
appellant is detrimental to its members' activities.   The route crosses a major
but geographically confined prawn fishing ground and it is said that
inadequate consultation has been held with those with affected interests.
The essence of the fifth respondent's problem is that not only may no fishing
lawfully take place within 500 metres on either side of the cable but a
trawler cannot simply raise and lower its nets just as it reaches or leaves the

prohibited strip.   For technical reasons that procedure has to begin well
before reaching the one kilometre-wide restricted zone and terminate a good
distance further on.   The resultant effect would be a substantial diminution
of the productive fishing waters and a material disruption of the catching
process.
[4] In proceedings before the High Court at Durban Hugo J made the
following order:
'It is declared that it is unlawful for the proposed SAT-3/WASC/SAFE
telecommunication cable to be laid off the coast of KwaZulu-Natal until and
unless the area of the bed of the sea to be occupied by the cable has been let to the
applicant or to such other party or parties as may be laying the cable in terms of
section 3 of the Sea-shore Act 21 of 1935.'

With the leave of the learned Judge the appellant appeals.
[5] When the appeal was argued we were informed that what the order
refers to as 'the proposed ... cable to be laid' has in fact by now been laid.
Why that happened we were not told.   The respondents did not suggest that

the appellant was in contempt of the order and the fifth respondent, in
particular, did not submit that its right to contend for a different cable route
had been prejudiced.   The matter was brought before the Court below as one
of great urgency and all that need be said in this respect is that if the
appellant is wrong it will have to comply with the Sea-Shore Act and,
conceivably, use another route.
[6] The main provisions of the Sea-shore Act that are pertinent for present
purposes are these.   Section 2 declares the President to be the owner of the
sea-shore and the sea.   In s 1 'sea-shore' is defined as being 'the water and
the land between the low-water mark and the high-water mark' (those 'marks'
being also defined but the definitions being presently irrelevant) and 'sea' is
defined as:
'... the water and bed of the sea below the low-water mark and within the
territorial waters of the Republic, including the water and the bed of any tidal
river and of any tidal lagoon.'

[7] In terms of s 1, if the Act applies to a province there is a 'competent
authority' in such province to whom the administration of the Act is
assigned.
[8] Section 3 is headed 'Letting of sea-shores and the sea' and ss (1)
empowers the relevant authority on such conditions as he may deem
expedient, to let any portion of the sea-shore and the sea for various
purposes, including the laying of cables.   Subsection (5) requires, before
any lease is entered into, publication in the Provincial Gazette and a
newspaper in 'the neighbourhood' in which the relevant portion of the sea is
situated, of a notice stating the proposal to let, the place and times at which
the proposed lease can be inspected and the fact that objections may be
lodged.   In terms of ss (6) an objection must be considered by the authority
before he enters into a lease.   Accordingly, if a lease is necessary in the
present case, the fifth respondent's right and opportunity to object are clear.

S 12A makes it an offence to use the sea as defined without a lease.   Finally,
s 13(e) exempts from the application of the Act
'the provisions of the Post Office Act, 1958 ... or any powers or rights conferred
upon the Postmaster-General by or under the said Act.'

[9] The appellant's assertion that it needs no lease is based exclusively on
the provisions of s 70 of the Telecommunications Act, 103 of 1996.
Although this Act is not referred to in s 13(e) of the Sea-shore Act the
contention for the appellant is that s 70 is a re-enactment of the repealed s 80
of the Post Office Act, 1958 ('the Post Office Act').   Accordingly, so runs
the argument, s 12 of the Interpretation Act, 33 of 1957, requires that the
reference in s 13(e) of the provisions of the Post Office Act be read as
including a reference to s 70 of the Telecommunications Act.   Of course, if
s 70 cannot carry the day the Sea-shore Act will govern the position.
[10] Section 70 reads:

'Entry upon and construction of lines across any lands.-  (1) A fixed line
operator may, for the purposes of provision of its telecommunications services,
enter upon any land, including any street, road, footpath or land reserved for
public
purposes,
and
any
railway,
and
construct
and
maintain
a
telecommunications facility upon, under, over, along or across any land, street,
road, footpath or waterway or any railway, and alter or remove the same, and may
for that purpose attach wires, stays or any other kind of support to any building or
other structure.
(2)   In taking any action in terms of subsection (1), due regard must be had to the
environmental policy of the Republic.'

'Telecommunication facility' is defined as including a cable.
[11] Before considering the language of this section it is appropriate to
provide the relevant legislative context.
[12] A provision substantially similar to s 70 was first enacted as s 82 of
the Post Office Administration and Shipping Combinations Discouragement
Act, 10 of 1911.   It read:
'Right of Entry and to Construct Lines across any Lands, etc -.
The Postmaster-General may, for the purposes of this Act, enter upon any lands
belonging to any person, including streets, roads, footpaths, or lands for public
purposes, and any railway, and may construct and maintain a telegraph line or any
work upon, under, over, along, or across any land, street, road, footpath, or
waterway, or any railway, and may alter or remove the same;  and may, for the

purpose, attach wires, stays, or any other kind of support to any building or other
structure.'

[13] The Postmaster-General was appointed by the Governor-General and
was the administrative head of the national Department of Posts and
Telegraphs.
[14] 'Telegraph line' was defined as including any 'wire, pipe ... or other
tube, thing, or means whatever' for effecting telegraphic communications.
[15] The English version of the 1911 Act was the signed text but counsel
for the appellant laid emphasis on certain aspects of the Dutch version of
s 82 which read as follows:

'82.
De Postmeester-generaal kan, voor de doeleinden van deze Wet, de
grond van derde personen betreden, met inbegrip van straten, wegen, voetpaden
of terreinen, die voor openbare doeleinden bestemd zijn en voor spoorwegen; hij
kan voorts telegraaflijnen of werken aanleggen op, onder, boven, langs of over
enige grond, straat, weg, voetpad of waterscheiding, of spoorweg, en kan deze
veranderen of wegnemen en voor dat doel draden, touwen of andere tot steun
dienende middelen aan een gebouw of ander werk bevestigen.'

[16] In the Dutch version, as can be seen, the 'entry' provision was focused
on the property of third parties.   One infers that the first and second parties
were respectively the Postmaster-General and the owner on whose land
construction occurred, and so third parties were, presumably, those whose
land was traversed to look for a construction site or to reach such site.   This
was consistent with the clear demarcation that was drawn between the 'entry'
provision and the 'construction' provision by using a semi-colon after
'spoorwegen' and the words 'hij kan voorts ...'.   Moreover 'grond', in either
provision, has a wider meaning than 'lands'.   In addition, 'waterscheiding'
was a wholly incorrect translation of 'waterway'.   A 'waterscheiding' is a
watershed and the latter, far from denoting water, means, in fact, the high
ground separating rivers which run in opposite directions.    As support for
the appellant's case, therefore, the Dutch rendition was something of a mixed
bag.

[17] For present purposes, however, it is unnecessary to decide which text
had to prevail, for the 1911 Act was repealed by the Post Office Act in
which the successor to the old s 82 was s 80.   Section 80 read thus:
'The Postmaster-General may for the purposes of this Act enter upon any land,
including any street, road, footpath or land reserved for public purposes and any
railway, and construct and maintain a telegraph line or any work upon, under,
over, along or across any land, street, road, footpath or waterway or any railway
and alter or remove the same, and may for that purpose attach wires, stays or any
other kind of support to any building or other structure'.

In the English version 'lands' had now become 'land' and in the Afrikaans
text the legislature used 'grond' for 'land', omitted reference to third parties
and  'waterway' was rendered as 'waterweg'.   A reasonable measure of
linguistic uniformity had therefore been achieved.
[18] Under the Post Office Act the status and function of the Postmaster-
General were the same as before and 'telegraph line' bore the identical
meaning to that which it did in the 1911 statute.

[19] Act 113 of 1976 changed the Post Office Act in various respects.
Among other things it altered 'telegraph line' to 'telecommunications line'
and it effected two amendments to s 78 (a section not yet discussed).    The
one amendment is of specific importance for present purposes and I shall
come to it later.   The other, of general historic interest, was this.   In the
long title of the 1976 Act - a long title of considerable length - there was no
mention of any newly available public amenity or any matter involving
major innovation.   However, in an insertion in s 78 there was reference
(almost surreptitious) to 'the transmission of images or other visible signs,
with or without attendant sounds'.   For such transmission the Postmaster-
General had to have the approval of the Minister of National Education,
granted after consultation with the South African Broadcasting Corporation.
Statutorily unmentionable as it apparently was, television had at last arrived
in South Africa.

[20] 1991 brought extensive changes to the legislation pertaining to postal
and telecommunications services.   Act 85 of 1991 laid down that a postal
company would provide the one kind of service and a telecommunications
company the other.   Section 80 of the Post Office Act was amended
appropriately to refer, not to the Postmaster-General but to 'the
telecommunications company'.   The companies were State-owned.
[21] Finally, there came the Telecommunications Act, 103 of 1996.   It
repealed many provisions of the Post Office Act, including s 80.   The
replacement for that section was s 70 of the 1996 Act on which, as
mentioned, the appellant essentially bases its case.   The section refers not to
the telecommunications company but a 'fixed-line operator' and as at the
time of the proceedings in the Court below that expression was defined to
mean 'Telkom and any other person who provides a licensed
telecommunication service by means of a telecommunication system

consisting mainly of fixed lines ...'.   In terms of the 1996 Act, therefore,
there could, notionally, be fixed line operators that were neither State-owned
nor State-controlled.
[22] A survey of the relevant context must now turn to another
successively re-enacted provision which was discussed during argument and
on which the respondents to a greater or lesser extent relied.
[23] In the 1911 Act s 80 was headed 'Postmaster-General to have
Exclusive Privilege in Respect of Telegraphs' and subsection (1) read (as
far as is relevant):
'The Postmaster-General shall have the exclusive privilege of constructing and
maintaining
telegraph
lines
and
of
transmitting
telegrams
or
other
communications by telegraph within the Union or the territorial waters thereof
and of performing all the incidental services of receiving, collecting, or delivering
telegrams or other such communications:   Provided that -
(a)
...
(b)
the Postmaster-General may construct, maintain, or lease telegraph lines
for private use or may, by licence, authorize any person to construct, maintain,
and work private telegraph lines within the Union or its territorial waters and may
prescribe the fees and conditions therefor.'

Section 78 of the Post Office Act - to which section I have already referred -
was to all intents and purposes identical.   Section 78 stood until repealed by
the Telecommunications Act.
[24] It was argued for the respondents that s 78 empowered the
Postmaster-General to construct telegraph lines by way of cables under the
sea, which power, until that repeal, was not affected by anything in the Sea-
shore Act, whether as originally enacted or subsequently amended.
Accordingly, so it was submitted, there could never have been any
legislative intention that the power conferred by s 80 of the Post Office Act,
and consequently s 70 of the Telecommunications Act, would encompass
submarine cable-laying.
[25] It is appropriate to mention at this point that, initially, s 13(e) of the
Sea-shore Act did not exempt the Postmaster-General at all.   It merely

exempted the holders of licences granted by him under s 80(1) of the 1911
Act, which I have just quoted.   It was only much later, in a 1984 amendment
to s 13(e), that the rights and powers of the Postmaster-General were
exempted from the operation of the Sea-shore Act.   It was suggested on
behalf of the respondents that the need for this grant of relief for the
Postmaster-General was occasioned by a possibly inadvertent 1976
amendment of s 78.   (I have already mentioned the 1976 amending
legislation with reference to the advent of television.)   By that amendment
the opening words of s 78 became:
'Subject to the provisions of any other Act of Parliament, the Postmaster-General
shall have the exclusive privilege ...'

It was the respondent's argument that this unwarrantedly subjected the
Postmaster-General's powers to the operation of the Sea-shore Act, from

which constraints he had then to be rescued by way of the 1984 amendment
to s 13(e) of the last-mentioned statute.
[26] In my view, however, the 1976 introduction of new opening words to
s 78 of the Post Office Act was no mistake.   The reason is this.   Despite the
pre-1976 reference in s 78, and its forerunner, to the territorial waters - and
especially the Postmaster-General's power in proviso (b), which, on the face
of the language, appeared to enable him to effect or license construction in
those waters - the fact is that the 1976 amendment to s 78 went on to change
the pre-existing provision substantially.   The exclusive privilege was now:
'of constructing, maintaining or using, or of authorizing any person to construct,
maintain or use, any telecommunications line not confined to a single piece of
land, or to pieces of land which are contiguous to each other and owned by the
same person, for the sending, conveying, transmitting or receiving of sounds,
images, signs, signals, communications or other information, and of transmitting
telegrams over any such telecommunications line within the Republic or the
territorial waters thereof, and of performing all the incidental services of
receiving, collecting or delivering telegrams.'   (My emphasis.)

The Postmaster-General's power in respect of the territorial waters was by
this amendment clearly limited to transmission within those waters, with no
longer any power, if indeed it did exist before, to 'construct' in those waters.
There was, in the circumstances, every reason to subject the Postmaster-
General's powers - at least in this specific respect - to the operation of the
Sea-shore Act.   Hence the new opening words of the section.   And here
was the opportunity, if the legislature intended to include the construction
power to be included in what was then s 80 of the Post Office Act, to express
that intention plainly.   It failed to do so, both in s 80 and in s 70 of the
Telecommunications Act.
[27] The only change when s 78 was amended in 1991 was the
replacement of 'Postmaster-General' with 'telecommunications company'.
In 1996 the section was repealed and no counterpart, whether to the pre-
1976 version or the post-1976 version, was enacted.

[28] It must necessarily follow that whatever telecommunications lines or
cables were laid in the territorial waters in the past the true legal position is
that they ought to have been laid either pursuant to the pre-1976
telecommunications legislation, assuming it indeed gave the Postmaster-
General the necessary power, or pursuant to the Postmaster-General's
compliance with the requirements of the Sea-shore Act.   The papers are
altogether bereft of evidence as to what course the Postmaster-General
actually did take.
[29] The inevitable conclusion as regards the contextual position is that
neither s 70 of the 1996 Telecommunications Act nor its precursors were
ever intended to deal with the undersea situation.
[30] Turning to the purpose of s 70, the laying of a submarine cable,
whether in terms of the pre-1976 telecommunications legislation or the Sea-
Shore Act, can never be beset by the obvious problems which confront

cable-laying on land.   The sea in the territorial waters is, through the
President, in effect all State-owned.   There are no different categories of
property and, with only one owner, no boundaries.   By contrast, to lay
cables on land would require permission or servitudes from a huge number
and variety of owners.   Hence the need for an all-embracing permission
such as is contained in s 70.   This does not mean that the appellant may not
experience difficulty in securing leases as easily, or on the same terms, from
the respective competent authorities in the maritime provinces but that
consideration does not bear upon the interpretation of this section.   The
provision it contains has been substantially to the same effect since 1911,
that is to say even after the administration of the Sea-shore Act ceased being
under the control of a Minister of State and came under provincial control.
In other words it reads the same way now as it read when there was only a
single controlling authority.

[31] This brings me the language of s 70 in somewhat more detail.   This is
a subject which, quite naturally, could have been discussed first but, in my
opinion, falls to be dealt with even more easily once context and purpose
have been examined.
[32] The argument for the appellant is that 'land' in the section includes the
sea-bed, a suggested interpretation which, it is said, is reinforced by the
word 'any'.   Enlarging upon this submission, counsel for the appellant said
that 'land' was, essentially, the earth's crust and it made no material
difference whether any particular portion of that crust was above or beneath
the sea.
[33] That there may (apart from, say, an island or shoal) be land in the sea,
receives some support from s 5(2) of the Sea-shore Act (not relied on by the
appellant) which says that 'any land in the sea or on the sea-shore' may be
reclaimed.   However, at best for the appellant this must mean land which is

close enough to the sea-shore to be reclaimable at all.   One might add that,
in Afrikaans, a ship which has run aground 'het aan die grond geraak' but
again the context signifies land or 'grond' close to the coast.   What one is
really concerned with in this case is the contention that 'land' includes the
bed of the sea anywhere in the territorial waters which, in terms of s 4 of the
Maritime Zones Act, 15 of 1994, extend 12 nautical miles from the coast.
[34] I do not think that the argument is advanced by the word 'any'.   That
word does not serve to convert into land that which, in ordinary parlance, is
not land.   In other words it does not extend the meaning of 'land'.   What it
does do is to exclude any exception to what in any case is land.   The
question therefore remains whether 'land' has the extended meaning for
which the appellant contends.
[35] The section maintains, although not as rigidly as in the Dutch version
of 1911, the dichotomy between what I might term the 'entry' provision and

the 'construction' provision.   But this indicates no more, as already
mentioned, than that a fixed line operator may enter landed property either to
assess if it is suitable for construction (in this case cable-laying), or to cross
it to get to land that is suitable.   Despite the dichotomy, it is plain that such
an operator must, in order to lay a cable on or over a particular piece of land,
first 'enter upon' it.
[36] There is no evidence as to the cable-laying process at sea but if the
description by the appellant's counsel during argument is accurate, that the
cable is played out from a sea-going vessel (whether proceeding landwards
or seawards), it causes unbearable strain upon the ordinary meaning of the
language of the section to hold that lowering a cable to the sea bed (or diving
to the sea floor to affix it) amounts to 'entry upon land'.
[37] The appellant's case is not improved by the argument (even if it were
tenable) that construction need not be preceded by entry upon the land where

construction occurs.   Although 'any land' in the 'entry' provision includes
streets, roads and so forth, and 'any land' in the 'construction' provision is in
addition to streets, roads etc, it is unquestionably so that 'land' means the
same thing in both clauses, and nothing in them or the rest of the section
justifies the interpretation of ' land' as including the bottom of the ocean.
[38] Some play, but not much, was made of the word 'waterway' as
supporting a submarine connotation.   That word does not enhance the case.
The ordinary meaning of 'waterway' is a channel or canal or river, and, when
used in a harbour or marine context, a channel which is, for self-evident
navigational reasons, somehow demarcated.   It involves linguistic distortion
to interpret 'waterway' as including any undefined portion of the open sea.
[39] Finally, the appellant's suggested interpretation of 'land' would
empower multiple fixed line operators to lay undersea cables without let or
hindrance.   This situation would seriously erode the  State's control and

management in respect of  marine and submarine operations which it has,
down the years, exercised either under the telecommunications legislation or
the Sea-shore Act.   No acceptable reason suggests itself why the State
would wish or need to relinquish that control.   It was argued for the
appellant that there was no reason for the legislature to have provided in the
Telecommunications Act for a complex regulatory scheme for fixed-line
operators within the Republic when it already had s 70, or for it to leave the
regulation of cable-laying in respect of the territorial waters to the various
authorities in the maritime provinces by way of a lease.   I disagree.   In
enacting the Telecommunications Act the legislature must be taken to have
realized that it had, in 1976, removed the provision in respect of the
territorial waters equivalent to the original s 78 of 1958, despite retaining the
exclusive privilege, first of the Postmaster-General and subsequently of the
appellant.   A reading of all the relevant earlier and current legislation leaves

no room for any interpretation other than that the provisions of the Sea-shore
Act alone must now govern the regulation of undersea cable-laying.
[40] For all these reasons, I conclude that s 70 of the Telecommunications
Act, 1996 does not empower the appellant to lay a submarine cable without
a lease under the Sea-Shore Act.   The appeal must consequently fail.
[41] As to costs, the appellant sought to avoid liability to pay for the entire
record.   Its contention was that the appeal concerned a point of law, for the
resolution of which the whole record was unnecessary.   The proceedings in
the Court below, however, involved an application by the appellant and a
counter-application by the fifth respondent.   The counter application
succeeded, hence this appeal.   The application also succeeded and the first
and fifth respondents were ordered to pay the costs of it jointly and
severally.   The fifth respondent cross-appealed against that costs order and,
for the proper presentation of its case in that respect, caused the full record

to be prepared.   It was justified in doing so.   It was only later that the
appellant abandoned the costs order in question.   It seems to me, therefore,
that the appeal costs payable by the appellant should not be limited as
contended for.
[42] The appeal is dismissed, with costs, including, in the case of the first
respondent, the costs of two counsel.

____________________
CT HOWIE
JUDGE OF APPEAL

CONCURRED:

Schutz  JA
Navsa  JA
Heher  AJA
Lewis  AJA