Glenwood residents take on eThekwini in court over cellphone masts
Durban - A group of Glenwood residents have filed papers in the Durban High Court, asking it to overturn eThekwini Municipality’s decision to allow MTN to erect scores of cellphone masts across the city, which they say has impacted their health and property values.
Glenwood resident and investigative journalist Niki Moore, who brought the application with seven neighbours - including Daniel Barbeau, Andre and Miranda van Rooyen, Layton Yenketsamy, Daniel Sheldon, Duncan Patterson and Charmain du Preez - argued in court papers that eThekwini Municipality did not follow legal processes for the granting of permission to MTN to erect 123 cellular masts. They claim their legal right to oppose the development had been infringed.
The respondents in the matter are MTN and eThekwini Municipality, the latter has opposed the application - stating in court papers that steps had been taken to ensure the masts were legally compliant, despite an earlier misunderstanding regarding approvals. MTN withdrew its initial opposition to the application. Judge Johan Ploos Van Amstel is expected to preside over the matter, which will be argued in court on Friday.
In the notice of motion, the residents are seeking an order for the court to review and set aside the municipality’s head of disaster management Vincent Ngubane’s decision, wherein he allegedly “absolved MTN from the usual requirements and regulations that were set down in the City’s town planning scheme and other regulations and unilaterally took the administrative decision to enter into an infrastructure sharing agreement with MTN”.
The residents are further seeking for the City to disclose information surrounding, and the reasons for, the decision to enter into the agreement.
In her founding affidavit, Moore said the Van Rooyens had approached her to investigate the matter in February 2017, claiming they were experiencing ill health which they suspected was related to a cellphone mast they believed may have been illegally erected on a traffic island, on the corner of Francois and ZK Matthews roads.
She said she initially referred them to a local newspaper as, at that stage, she had not associated her own health issues, including severe headaches, fatigue, depression and muscle pain, with the mast which had been erected in 2016.
However, she said when the Van Rooyens approached her again in May, she realised her health symptoms were similar to theirs.
“Together we began to investigate the circumstances of the mast as well as the health effects. We found large numbers of people in our vicinity reporting similar symptoms,” she said.
Moore said she obtained a radiation frequency measuring device, that showed high levels of radiation coming from the mast on a continual basis.
“I discovered that on or around October 2016, a large concrete pole was built on the traffic island (road reserve) of Rick Turner Road in Glenwood. Queries from residents and ward councillors elicited the response from the second respondent, eThekwini Municipality, through an official statement, that the structure (123 of which were built on various sites around Durban) were camera poles meant for the installation of CCTV equipment, to enhance security There was no mention of cell masts and, in fact, City officials flatly denied in community meetings that the structures were cell masts,” she said.
Moore said a battle had ensued to elicit information from the City and MTN regarding the erection of the cellphone masts to the concrete poles, which she also alleged had been installed by the cellular network and not the City, and had been approved without following municipal regulations, including the public participation process, in terms of the Durban Town Planning Scheme.
However, Ngubane argued in his responding affidavit that the matter involved “camera poles erected by eThekwini to which limited cellular infrastructure is attached” and as a registered metropolitan municipality, it was exempt from building and town planning requirements regarding municipal infrastructure.
He said the City had entered into a lease agreement with MTN when the network approached it in around 2008, asking to share infrastructure for cellular masts.
“I understood that MTN did not need to seek town planning approval to erect cellular infrastructure on CCTV poles (sic). I did not take a decision to absolve MTN from this requirement. It was merely my understanding,” Ngubane said.
He said he had, in 2016, received contrary advice from the City’s Land Use Management Unit, which told him MTN would have to apply for special consent to erect cellular infrastructure on the CCTV poles. He said he then advised MTN it needed to apply for special consent and to stop construction and deactivate any existing masts, which it had done. He said the lease agreements with MTN were legal.
Ngubane also disputed the residents had provided sufficient evidence regarding their health concerns and denied allegations that symptoms may be from the electromagnetic field (EMF) radiation from the masts.
He said MTN had commissioned a health study in the city which had concluded “there were no adverse health consequences caused by this infrastructure”.
MTN SA spokesperson Jacqui O’Sullivan said the project had been completed in partnership with the City.
“Both parties were then under the impression that no approval was required where the Ethekwini Metro was dealing with its own infrastructure. However, once it was highlighted that there was a need for approval, MTN lodged applications for approval of the telecommunications infrastructure,” O’Sullivan said.
“MTN can confirm that the partnership with the Ethekwini Municipality, to provide mobile network coverage in the area, is progressing well and all necessary processes have been met to obtain the approvals and permits for the required infrastructure.”
She said 45 camera poles had been fully approved by the City’s Land Use Management Department.
“MTN continues to engage with the municipality regarding the fulfilment of the remaining sites.”