Stella’s 5G rollout plan raises tempers and questions of constitutionality

Communications and Digital Technologies Minister Stella Ndabeni-Abrahams’ plans to give telecommunications companies the right to build on private land – without even having to pay in some cases – have raised the ire of property owners around the country.

The minister published the proposal with a call for public comments last week.

By mid-afternoon Monday, almost 38,000 responses had been received by Dear South Africa – which provides an online platform through which members of the public can make their submissions – alone. One reads: “I do not support the installation on private property. That is an infringement on my asset and should be approved by me as a private property owner first! This is completely disrespectful and infringes on my personal rights.”

“How can a private company build a profit making equipment on a private property and not pay for it? Unacceptable, moreover anything built on a private property must be agreed [to] by all parties before proceeding,” reads another.

The proposed policy would give network service providers the right “to enter upon and use public and private land for the deployment of electronic communications networks and facilities”.

Further, a property owner would not be able to charge them access fees to erect ‘non-intrusive’ infrastructure – like buried or overhead cables – on his or her land.

He or she could charge “reasonable” access fees in cases where ‘intrusive’ infrastructure – such as masts – was erected; but these would have to be “in proportion to the disadvantage suffered” and could not “enrich” the property owner or “exploit” the company.

And property owners who caused any damage to the infrastructure on their land, would have to pay for it.

“Property owners must exercise due care and diligence to avoid damage to electronic communications networks or facilities deployed on its property,” reads the proposed policy. “If such electronic communications networks or facilities are damaged due to the fault of a property owner, reasonable compensation agreed to between the property owner and the electronic communications network service licensee is payable.”

In explaining the rationale behind the proposed policy, Ndabeni-Abrahams emphasised the significance of the emergence of 5G, describing it as a harbinger for autonomous vehicles as well as “various other disruptive technologies of the fourth industrial revolution.”

“Rights of way will become increasingly important to deploy massive numbers of small cells for 5G and backhaul to connect the cells,” she said. “Large scale deployment of fibre is necessary for backhaul and the increasing demands of wireless networks.”

Constitutional law expert Paul Hoffman SC says the question at hand is whether the legislation operated in a way that was consistent with the constitution.

He says in terms of the constitution, the state had an obligation to “respect, protect, promote and fulfill all of the rights guaranteed to South Africans.”

“Including their rights of ownership, which include the use and enjoyment of their property,” he adds.

Hoffman says while rights of ownership could be limited in certain circumstances, this had to be done in a way that was reasonable and justifiable in an open democratic society.

“And my thinking is that it is not reasonable to take away rights of ownership without compensation,” he says.

“There is a less restrictive way of doing it, namely to give people a measure of compensation.”

Political analyst Sandile Swana, meanwhile, believes Ndabeni-Abrahams is “on the right track” with the proposed policy.

He says South Africans would have to compromise on some of their rights in order for the country to to embrace the fourth industrial revolution – including their rights of ownership.

He believes the rollout of information and communications technology (ICT) infrastructure now could be compared to that of railway and power lines in the past and that it is necessary in order to drive the economy forward.

No stranger to controversy, the minister has, since her appointment to the position, repeatedly made headlines.

In April, a photo of her and the former deputy minister of higher education, Mduduzi Manana, having lunch together at the latter’s home during the national lockdown went viral.

He was suspended for two months and made to publicly apologise.

Swana says that Ndabeni-Abrahams is “very focused and knowledgeable” but that there is also “another side to her.”

“I think she is a minister but she also has tendencies as an activist,” he says. “And when you are in office, your ability to say or do things becomes limited because of what protocol demands.”

He says while the minister might not be everyone’s cup of tea, in the short time she had been in office there had been progress in her department.

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