Cape Town – The City has won a case against telecommunications provider Telkom
after the Constitutional Court found that erecting its cellphone mast in Heathfield, without the relevant approvals, was unlawful.
The Constitutional Court yesterday handed down judgment in an appeal by Telkom, who was found not to have complied with the Electronic Communications Act, after it contravened municipal by-laws and policies.
In 2015, the telecoms giant wanted to improve its infrastructure to supply better services in Cape Town and decided to build 135 cellphone masts and rooftop stations. It identified a property situated in the suburb of Heathfield that belonged to the estate of Birch Kalu.
However, under the by-laws of the City, the property was zoned as single residential zone 1, which did not allow the construction of cellular masts.
In January 2016, Telkom applied for the rezoning of a portion of the property to permit the construction of a mast.
Two weeks later, Telkom went ahead and built the mast even though it had not received the City’s approval for rezoning.
The construction sparked outrage from residents, who complained
to the City.
The City responded by imposing an administrative penalty on
Telkom and put its application for rezoning on hold pending payment of the penalty.
Telkom then launched an application in the high court in which it challenged the validity of the City’s by-law, arguing that the policy was not competent and that the Building Standards Act did not apply to it because it was part of the State.
The City opposed the relief sought by Telkom and lodged a counter-
application.
The high court rejected Telkom’s submissions and dismissed its application but the City’s counter-application was successful.
Dissatisfied, Telkom appealed to the Supreme Court of Appeal and argued that cross-municipal boundary networks were not
subject to municipal planning regulation, as these fell under the competence of the provincial and national spheres.
Relying on Habitat Council and the Spatial Planning and Land Use Management Act, the SCA rejected Telkom’s argument.
In a unanimous judgment, Justice Chris Jafta refused the leave to appeal by Telkom, ordering the company to pay costs, including costs of two counsel.
“There is one further matter that needs to be mentioned. This relates to time periods taken by the City, and probably other municipalities, to decide applications for approval to build cellphone masts and other related infrastructure.
“The average period is between six months and a year. This is not conducive to the licensees’ needs and conditions imposed upon them by the regulator.
“However, this is a process issue which is not relevant to the interpretation of the Constitution.
“It may be resolved by the relevant authorities prescribing shorter time periods within which municipalities must determine telecommunications-related applications for approval,” the judgment read.