Telkom recently lost a case in the Western Cape High Court 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 a month later it left out 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.
Right to information
Telkom and the property administrator stated that the Electronic Communications Act emphasises the public’s right to information.
The Act also gives licensed network operators extensive rights to enter land to construct and maintain their networks in South Africa.
They then argued that the Constitutional Court has already recognised the societal importance of telecommunications.
The court stated that the ability to build networks promotes economic growth, education, public service delivery, and has the potential to improve the quality of life in South Africa.
The Constitutional Court also stated that network providers only need to comply with applicable laws so long as doing so does not mean their rights are “defeated or eviscerated”.
As such, Telkom argued 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 – and upheld by the Constitutional Court.
However, judge AJ Andrews was unconvinced.
Andrews said the Constitutional Court has also established the role of municipalities in local planning.
This includes zoning, even when it comes to the use of land for telecommunications – which falls within the exclusive authority of national government.
Andrews sided with the City of Cape Town and declared Telkom’s construction of the basestation unlawful.
It dismissed the application with costs.
Telkom told MyBroadband it is studying the judgment, and will only be in a position to comment fully once it has considered all the issues raised.
“Telkom has always maintained that the activities that were the subject of this matter were not regulated by the by-laws concerned. It is for this reason that there was, in our view, never a need to apply for approvals in terms of the processes described in the by-laws,” said a Telkom spokesperson.
Depending on the final outcome of the matter, Telkom said it will need to assess the impact of the by-laws on the ability of licensed network operators to build the masts it is trying to erect.
“Adherence to the by-laws will most certainly… make such activities more cumbersome and time consuming, which in turn most likely would, should this become the case, have a negative impact on service provision,” said Telkom.