Telkom has lost its latest fight against the City of Cape Town over the erection of cellphone masts in the city.
The Supreme Court of Appeal this week dismissed an appeal by Telkom against a previous judgement by the Western Cape High Court, in which the court stated that Telkom must follow Cape Town’s by-laws when building cellphone towers.
Telkom lost its case in the Western Cape High Court in 2018 against the City of Cape Town over the placement of a cellphone mast on land that it leased on 9 November 2015.
The land Telkom leased was zoned as a low-to-medium density residential area, primarily for family housing.
It launched an application to rezone the land on 22 January 2016, but Cape Town informed Telkom that it left out the required information and did not pay the application fee.
After Telkom provided the information and paid the fee, the City of Cape Town processed the application.
Telkom started erecting a cellphone mast on the property before it was rezoned, however, and without getting the relevant building plan approvals or exemption. It also did not give notice to the city that it had started construction.
As a result, the City of Cape Town halted the rezoning application and said Telkom needs to pay an administrative penalty before the process can continue.
Telkom disputed the matter and asked the city to halt the process so it may get a declaratory order on the issues in the dispute.
Telkom then asked the courts to rule that Cape Town’s by-laws are either in conflict with the Electronic Communications Act, or unconstitutional and invalid.
Telkom argued that the Act gives licensed network operators extensive rights to enter land to construct and maintain their networks in South Africa.
As such, Telkom said it does not have to comply with the City of Cape Town’s by-laws, as they are frustrating the rights given to them by the law.
The Western Cape High Court did not agree, however, and said municipalities are responsible for zoning – even when it comes to the use of land for telecommunications.
The Supreme Court of Appeal agreed with this high court ruling, and dismissed Telkom’s appeal with costs.
“Properly and fairly considered the policy does not affect the realm of telecommunications, save in the context of matters that are the central concern of municipalities in regard to which their legislative competence is protected by the Constitution. There is in my view no merit in the attack on the policy,” stated the court.
Telkom said it has noted the judgement and is reviewing it.
“We are not yet in a position to comment in any greater detail at this stage until management has had an opportunity to obtain advice on the judgement and to consider the advice provided,” said Telkom.