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TELKOM SA LIMITED v.THE MEMBER OF THE EXECUTIVE COUNCIL FOR AGRICULTURAL AND ENVIRONMENT AFFAIRS:KWAZULU-NATAL,SARAH JANE ALLAN, H.B STRAUSS,SPRAY FISHING(PROPRIETRY)LTD AND THE PRAWN FRISHERIES AND DEVELOPMENT ASSOCIATION OTHERS.

País/Territorio
Sudáfrica
Tipo de la corte
Nacional - corte superior
Fecha
Sep 5, 2002
Fuente
UNEP, InforMEA
Nombre del tribunal
High Court of South Africa
Sede de la corte
Bloemfontein Free State
Juez
HOWIE
SCHUTZ, JA
NAVSA, JJA
HEHER, J.A
LEWIS, AJJA
Idioma
Inglés
Materia
Medio ambiente gen.
Palabra clave
Normas sobre emisión Economiá y medio ambiente Manejo y conservación pesquera Normas sobre calidad del agua Derecho de acceso Normas sobre calidad ambiental Contaminación marina Normas Normas sobre efluentes residuales Normas sobre ruido Tecnología ambiental
Resumen
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 authority in terms of s 3(1) (m) of the Sea-shore Act. The first respondent, the Member of the Executive Council for Agriculture and Environmental Affairs: says not so does the fifth respondent, The Prawn Fisheries and Development Association. The respondents informed the court that the main provisions of the Sea-shore Act that are pertinent for present purposes are these. 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 neighborhood' 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. 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of cables under the sea, which power, until that repeal, was not affected by anything in the Seashore Act, whether as originally enacted or subsequently amended. 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. They further stated that 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. The court held that 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. It also added that 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.