By Lyse Comins Nov 13, 2020
DURBAN residents have raised concerns about being saddled with a costs order for an application filed by them in the Durban High Court regarding scores of cellphone masts erected across the city, saying the ruling was a blow for citizens.
However, eThekwini Municipality said this week it was only “right and appropriate” it recoup ratepayers’ money spent on the legal battle.
Niki Moore, a Glenwood resident, filed the application along with neighbours Daniel Barbeau, Andre and Miranda van Rooyen, Layton Yenketsamy, Daniel Sheldon, Duncan Patterson and Charmain du Preez last month.
They had alleged in court papers the municipality had not followed legal processes when it gave permission to MTN to erect 123 cellular masts and that their right to oppose the development had been infringed.
The respondents in the matter were MTN and eThekwini municipality.
The municipality opposed the application, contending in court papers steps had been taken to ensure the masts were legally compliant despite a previous misunderstanding about approvals.
MTN claimed it was under the impression no approval was required to erect masts on municipal infrastructure.
According to court papers, eThekwini Municipality had repeatedly and publicly told residents and journalists the masts had been installed as part of an “infrastructure sharing agreement” with the network, a decision they wanted the court to set aside.
However, the municipality said “no such decision was taken” and MTN had not been exempted from town-planning rules as it had concluded “short-term tenancy agreements”.
Judge Johan Ploos van Amstel dismissed the application with costs, ruling the application had not been launched within a 180-day period as required by the Promotion of Administrative Justice Act, and had been filed “hopelessly out of time”.
“The review would have failed on the merits in any event. The agreement to which the applicants object was signed on behalf of MTN on August 11, 2016. The copy in the record reflects that it has not been signed by the municipality,” he said.
He said the agreement, headed “Short Term Tenancy Agreement” referred to the “CCTV mast situated at the corner of ZK Matthews and Rick Turner”.
“It provides for the use by MTN of a portion of the mast and the site to erect transmission and receiving equipment for cellphone signals and to occupy the site for use as a base telecommunication station for cellular telephones.
“The agreement provides for termination by either party on three months’ notice and is conditional on special consent being granted by the municipality in terms of its town planning scheming regulations. In the event of special consent being refused, the agreement would fall away,” he said.
He added the City was “plainly correct” in its argument that the application for special permission would involve public participation, and there was therefore no merit in the residents’ complaint.
In awarding costs, he said the municipality had not failed to fulfil its constitutional and statutory responsibilities.
“The first decision complained of was never taken. The second one was unobjectionable as the agreement required MTN to apply for special consent. The application for a review was ill-conceived and bound to fail. It was also hopelessly out of time, and there was no application to extend the period within which it had to be brought. In those circumstances I do not consider that the municipality should be deprived of its costs,” he said.
Moore said the judgment was “bitter-sweet” outcome.
She said residents had “won in principle” because they had “forced the City to admit before court” that there was no infrastructure sharing agreement with MTN.
However, she said the costs award was a “huge shock” and residents would appeal against this aspect of the judgment.
“The City motivated very strongly for a cost order, and we feel there was an element of malice. The City wants to punish us for revealing their wrong-doing,” she said.
Municipal spokesperson Msawakhe Mayisela said: “The applicant’s application was misconceived because the applicants did not understand what had in fact transpired.”
He said the City had spent public funds and “as a responsible municipality, it was accordingly right and appropriate for eThekwini to seek to recover the costs of the litigation”.
