Cape Town - Telkom has taken its battle with the City to the Constitutional Court, claiming it doesn’t have jurisdiction to decide where it can erect cellphone masts.
It is the third time Telkom has taken the City to court for building a tower that it claims it needs for improved coverage.
In court papers the telecommunications giant states its concerns over the roll-out of telecommunications networks in South Africa and the conflict between national powers over telecommunications and municipal powers over municipal planning.
In 2016 Telkom wanted to install a mast on a private residential property in Heathfield. The property is zoned for single residential use and does not allow for the construction of a cell mast, which is in contravention of the City’s by-laws.
“The roll-out of the 5G networks in South Africa will be the next important development in meeting the telecommunications needs of the country. If the SCA’s judgment is not overturned on appeal, it will substantially retard the ability of network licensees to ensure the effective and efficient roll-out of this new network capability in South Africa, apart from impeding the roll-out of existing 3G and 4G networks,” Telkom says in court papers.
But the City said it had the right to require in a by-law that land may not be used for masts unless it was appropriately zoned.
“This court has struck down a series of statutes which compromise or impede municipalities’ ability and right to exercise their powers or perform their functions in relation to municipal planning,” it stated in papers.
Mayco member for Spatial Planning and Environment, Marian Nieuwoudt, said: “Both the Western Cape High Court and the Supreme Court of Appeal have ruled in the City’s favour on this matter with the SCA dismissing Telkom’s argument that it was free to install telecommunications stations - commonly referred to as cellphone masts - at a location of its choice and without prior approval from the City. The hearing on Thursday will be the culmination of this process.”