Cape Town - The Supreme Court of Appeal (SCA) has affirmed the City of Cape Town’s constitutional mandate to regulate and control the use of land within its municipal borders after Telkom said it did not need the City’s permission to put up cellphone masts on municipal land.
The judgment was delivered on Wednesday and followed an appeal that Telkom lodged after the Western Cape High Court ruled in the City’s favour.
Mayco Member for spatial planning and environment, Marian Nieuwoudt said: “The City welcomes the SCA's judgment, as well as the decision to dismiss Telkom’s appeal with costs. With this judgment the SCA has once again affirmed the constitutional validity of the City’s municipal planning by-law, and telecommunications mast infrastructure policy.”
Nieuwoudt said the ruling sets an important precedent that all telecoms service providers, inclusive of state-owned Telkom, must obtain the City’s approval prior to installing masts in Cape Town.
The SCA dismissed Telkom’s argument that it was free to install telecoms stations - commonly referred to as cellphone masts - at locations of its choice without prior approval from the City. All land units within Cape Town’s municipal boundaries have a base zoning that determines what the land can be used for, and how it may be developed.
In 2017, Telkom installed a cellphone mast in Heathfield without prior approval from the City. The zoning of the land does not permit the installation of a cellphone mast, and when the City informed Telkom that it was in breach of the municipal planning by-law, the company approached the Western Cape High Court to challenge the MPBL and the City’s telecoms mast infrastructure policy.
Telkom had planned to install 135 masts across Cape Town and went ahead and installed seven without the City’s approval.
The City opposed Telkom’s application in the Western Cape High Court and in the SCA matter.
“Telkom argued that the MPBL does not apply to them and that they are free to install cellphone towers wherever they deem fit, irrespective whether the land is zoned for that use or not.
"I’m pleased that the SCA dismissed this argument and that the judgment concurs with the order from the Western Cape High Court last year that Telkom is bound by the municipal planning by-law like all other developers and landowners in Cape Town,” Nieuwoudt said.
Telkom said it had noted the judgment and was reviewing it. “We are not yet in a position to comment in greater detail at this stage until management has an opportunity to obtain advice on the judgement and to consider the advice,” said Telkom.