Constitutional Court refuses leave to appeal by Telkom on erection of cellphone masts

The Constitutional Court has refused Telkom leave to appeal against a judgment which held that it had built a mast in contravention of Cape Town’s bylaws. Image: NICOLENE OLCKERS/GALLO IMAGES
The Constitutional Court on Thursday refused Telkom leave to appeal against a judgment which held that whenever it wanted to erect a mast on any property, municipal bylaws must be complied with.

The case has its genesis five years ago when Telkom decided to build 135 cellular phone masts and rooftop stations in Cape Town.

It identified a property in Heathfield that belonged to the estate of Birch Kalu.

However, under city bylaws the property was zoned as single residential zone 1, which did not allow for the construction of cellular masts.

In January 2016, Telkom applied for the rezoning of a portion of the property so as to permit the construction of a mast.

Two weeks later, Telkom went ahead and built the mast even though it had not received city approval for rezoning. When residents complained, the city responded by imposing an administrative penalty on Telkom and put its application for rezoning on hold pending payment of the penalty.

Telkom then approached the Western Cape High Court to challenge the validity of the bylaw.

Telkom argued that the city had no power to make the bylaw and that the policy which affected electronic communications fell into the national sphere.

Telkom relied on Section 22 of the Electronic Communications Act, which states that a licensee is permitted to enter any land for purposes of constructing and maintaining an electronic communications network or facility.

The city opposed the application and instead sought an order declaring that Telkom had built the masts unlawfully in breach of the National Building Regulations and Building Standards Act. The act requires that the city’s consent be obtained before a mast is erected.

The high court ruled in favour of the city, declaring the construction of the mast on the Kalu property as unlawful.

Telkom approached the Supreme Court of Appeal, which dismissed its appeal with costs in September 2019. Telkom then turned to the Constitutional Court and argued that the city had no legislative power to regulate telecommunications.

The Constitutional Court, in its judgment, said the matter concerned the question whether the exercise of rights held in terms of the Electronic Communications Act is subject to compliance with municipal bylaws and policies.

“Differently put, whether a holder of those rights must comply with municipal bylaws before exercising those rights,” the court said.

In a unanimous judgment by Justice Chris Jafta, the apex court said it was not persuaded that the Supreme Court of Appeal was wrong to dismiss the appeal.

“The judgment of that court is unassailable and as a result, the granting of leave here would serve no purpose. This means that leave must be refused as it is not in the interests of justice to grant it.”


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