A legal battle between Telkom and the City of Cape Town over a tower - which the partly state-owned telecommunications giant maintains it needs for improved coverage - is headed to the Constitutional Court.
The DA-run metro put its foot down against Telkom, accusing the telecommunications giant of bulldozing its way and erecting the tower in a piece of land zoned only for residential property.
Put up in 2016 at a property of Hilda Isabel Kalu in Heathfield, Cape Town, the mast has been a site of legal strife for the last three years. The Supreme Court of Appeal (SCA) ruled in favour of the metro last year.
The court found against Telkom’s argument that the city’s Telecommunications Mast Infrastructure Policy adopted in 2002 was unconstitutional as it could be applied to block nationally needed telecommunications infrastructure.
Telkom is now headed to the apex court to argue its case and seek to appeal the SCA judgment.
“The SCA’s judgment has a far-reaching impact because the roll-out of telecommunications networks is essential to meeting the telecommunications needs of people in South Africa,” George Candiotes, the group executive for legal services at Telkom, said in court papers.
“This impact will be compounded because of the technical requirements for the 5G telecommunication networks that are soon to be rolled out.
“The SCA judgment has the capacity materially to impede the roll-out of 5G networks in South Africa,” Candiotes added.
Telkom argued that the same legislation that excluded municipalities in the planning of national and provincial roads applied to determination of telecommunication infrastructure.
He said the SCA’s “errors” would hit all network licensees because “each of them engage in a careful network design programme”.
“The location of the base station is designed to deliver optimal performance to the consumers that are utilising the service,” Candiotes said.
“Moving a base station a mere 200m down the road, for example, can have a substantial impact on service delivery.”
Hitting back in its own court papers, the City of Cape Town said Telkom flouted its by-law when setting up the tower.
Fiona Ogle, the head of legislation and enforcement at the City, said the tower was in land zoned for residential property.
The apex court will hear the matter in March.