South Africa: Telkom contravened municipal by-laws and policies, loses Concourt cell masts case.

Telkom loses ConCourt battle on cellphone masts


By Samuel Mungadze

Johannesburg, 26 June 2020

The Constitutional Court (ConCourt) delivered a blow to Telkom yesterday, dismissing the company’s bid to be allowed to install telecommunications stations – cellphone masts – at locations of its choice without prior approval from local authorities.

Telkom approached the ConCourt seeking the interpretation of Section 22 of the Electronic Communications Act. It wanted the court to pronounce whether the exercise of rights it held in terms of the section is subject to compliance with municipal bylaws before exercising those rights.

The court’s decision is likely to have a far-reaching impact on telcos that have previously faced criticism over cellphone masts. Concerns from some quarters ranged from the masts being a distraction, to alleged emission of electromagnetic radiation.

The long-running battle over the cellphone masts between Telkom and the City of Cape of Town dates back to 2016 when Telkom installed a cellphone mast in Heathfield, without prior approval from the city.

According to the City of Cape Town, the zoning of the land does not permit the installation of a cellphone mast, and when the city informed Telkom that it was in breach of the Municipal Planning Bylaw, the company approached the Western Cape High Court to challenge the validity of the law and Cape Town’s telecommunications mast infrastructure policy.

At the time, Telkom planned to install 135 masts across Cape Town and went ahead and installed seven masts without obtaining the city’s approval.

The city responded by imposing an administrative penalty on Telkom and put its application for rezoning on hold pending payment of the penalty. The telco then approached the courts.

Subsequently, Telkom lost the matter in the Western Cape High Court, as well as in Bloemfontein at the Supreme Court of Appeals, before heading to the ConCourt.

On Thursday, the ConCourt unanimously dismissed Telkom, saying its “interpretation” of the law lacks merit.

“The Constitutional Court further held that its jurisprudence on the interpretation and application of section 22 of the Act illustrates that licensees must comply with municipal bylaws when they exercise the right conferred on them by that provision. Therefore, it held that the Supreme Court of Appeal cannot be faulted for applying that interpretation of section 22,” reads the judgement.

It continues: “The Constitutional Court held that leave to appeal must be refused as it was not in the interest of justice to grant it. The effect of the refusal was that the order issued by the High Court remains extant and Telkom should pay costs, including the costs of two counsel.”


Concourt rules against Telkom in Heathfield cellphone mast case

By Chevon Booysen Jun 26, 2020


Cape Town – The City has won a case against telecommunications provider Telkom after the Constitutional Court found that erecting its cellphone mast in Heathfield, without the relevant approvals, was unlawful.

The Constitutional Court yesterday handed down judgment in an appeal by Telkom, who was found not to have complied with the Electronic Communications Act, after it contravened municipal by-laws and policies.

In 2015, the telecoms giant wanted to improve its infrastructure to supply better services in Cape Town and decided to build 135 cellphone masts and rooftop stations. It identified a property situated in the suburb of Heathfield that belonged to the estate of Birch Kalu.

However, under the by-laws of the City, the property was zoned as single residential zone 1, which did not allow the construction of cellular masts.

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

Two weeks later, Telkom went ahead and built the mast even though it had not received the City’s approval for rezoning.

Read more at:

Concourt ruling

Full judgement

EMFSA: background about the Heathfield mast

Image credit EMFSA

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