No, Telkom, you can’t just build your masts where you please

The Constitutional Court has shot down a bid by Telkom to have the final say on where it erects its cellphone masts. It must comply with municipal laws.

The ruling could have far-reaching implications for telecommunications and network providers because it means municipal laws trump those in communications legislation.

This marks the end of a nearly five-year battle between the state communications provider and the City of Cape Town, with the former claiming special game status to try and circumvent municipal bylaws that bar it from building on residentially zoned land.

The case dates back to 2015, when Telkom identified a property in the suburb of Heathfield on which it wanted to erect a mast.

It subsequently entered into a lease agreement with the owner but under the city’s bylaws, the property was zoned “single residential zone 1” and the construction was not allowed.

In 2016, Telkom applied for a portion of the property to be rezoned. But two weeks later – and without having yet received approval – it built the mast.

This resulted in an outcry from local residents and triggered an administrative penalty from the city which, in turn, prompted Telkom to turn to the courts.

The crux of Telkom’s arguments in court was that it was empowered by the Electronic Communications Act to erect telecommunications infrastructure wherever it pleased and any municipal bylaws that said otherwise were, therefore, invalid.

The Western Cape High Court and the Supreme Court of Appeal (SCA), however, both disagreed and dismissed the case.

“The difficulty with this approach was that, if applied in that fashion, it would exclude the municipality from engaging in the zoning that has been held to lie at the heart of municipal planning,” the SCA found.

It also found this exclusion “would not be confined to telecommunications infrastructure”.

“It would also extend to matters such as infrastructure for the provision of electricity or the supply of bulk water. In designating land as zoned for hospital purposes, it would trench upon national and provincial areas of exclusive legislative competence in regard to public health and the provision and siting of healthcare facilities. The same would apply to zones demarcated for schools or education purposes,” the SCA said.

On Thursday, the Constitutional Court echoed these sentiments and found “the fact that Telkom is licensed to offer telecommunications services does not, without more, entitle it to exercise the rights in … the Act to the total disregard of municipal planning and zoning powers”.

“The Act stipulates that the exercise of those rights is subject to compliance with applicable law,” Justice Chris Jafta said.

Of the time it took municipalities to decide on applications for rezoning and the likes, Jafta did say the average period – of between six months and a year – was “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,” he said.

An official, who spoke to The Citizen on condition of anonymity, said in Johannesburg, cellphone masts were treated as “infrastructure” as opposed to a “land use” and as such were not subject to zoning requirements.

But he said the city faced similar challenges to those faced by Cape Town, in that it struggled to call errant network operators to heel based on the same argument.

Meanwhile, the City of Joburg’s spokesperson, Nthatisi Modingoane, said yesterday his offices were aware of the judgment and were currently studying it.

“The city will also look into the implications and make its official position known at a later stage,” Modingoane said.

– bernadettew@citizen.co.za

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