Telkom was struck down in the South African courts after a battle over zoning authority in response to unauthorized towers in Cape Town. The continent’s telecom giant installed seven towers – referred to as ‘masts’ or ‘mobile towers’ overseas – without the City of Cape Town’s approval, with plans to install another 135, as reported by ITWeb.
The city’s response was an administrative penalty and a hold on the company’s rezoning application, dependent on the payment of fines. The City of Cape Town said the zoning of the land does not permit cell towers and warned Telkom that the company was in breach of the Municipal Planning Bylaw. Telkom took the matter to the courts. The case was centered around telecommunication companies’ ability to install masts at chosen locations without first seeking the approval of local authorities.
The Constitutional Court’s interpretation of Section 22 of the Electronic Communications 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,” according to the judgement.
The judgement goes on to declare that “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.”
Telkom approached the courts in late June with the argument that the city could not regulate telecommunications using legislative power, and that the municipal bylaw does not apply to the company, which should be able to install the towers at locations of their choice, regardless of zoning ordinances. ITWeb reported the court unanimously dismissed Telkom, stating the company’s “interpretation” of the law lacks merit.
The company described compliance with different bylaws as unworkable, and stated that this ruling assigns a restrictive meaning to the phrase “municipal planning.”
The City of Cape Town stated that all land within the city’s municipal boundaries is regulated by base zoning that determines land use and development. This zoning is illustrated in the Development Management Scheme and included in the municipal planning bylaw.