EMR Health Alliance of BC

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.”

In court, Telkom argued the municipal bylaw does not apply to it and that the company is free to install cellphone towers wherever it deems fit, irrespective of whether or not the land is zoned for that use.

Telkom argued the city had no legislative power to regulate telecommunications, and to the extent that the impugned bylaw, read with the policy, regulates telecommunications, it is invalid.

Further, Telkom argued that compliance with different bylaws is unworkable and that this constitutional conundrum is to assign a restrictive meaning to the phrase “municipal planning”.

The City of Cape Town argued that all land units within the city’s municipal boundaries have a base zoning that determines what the land can be used for, and how the land may be developed.

This zoning, among others, it contended, is indicated in the Development Management Scheme that is included in the municipal planning bylaw.