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Court Confirms Municipal Powers

by | Aug 30, 2018 | Uncategorized

Court Confirms Municipal Powers: Telkom SA Soc Ltd, Kalu NO and Another v City of Cape Town

Telkom SA (“Applicants”) sought a declaration that the provisions of the City of Cape Town’s Municipal Planning By-laws 2015 (“By-law”), Zoning Scheme Regulations and Telecommunications Mast Infrastructure Policy (Policy no. 40544) (“Mast Policy”), are in conflict with the provisions of Section 22 of the Electronic Communications Act 36 of 2005 (“ECA”) and are accordingly invalid.

Telkom intended to construct electronic communications base station infrastructure on property within the jurisdiction of the City of Cape Town. It argued that since “telecommunications” is a national competence, it was not necessary for it comply with the City of Cape Town’s By-law, but only national legislation, in this case, the ECA.

Section 22 of the ECA provides that: “entry upon and construction of lines across land and waterways. (1) An electronic communications network service licensee may—

  1. (a) enter upon any land, including any street, road, footpath or land reserved for public purposes, any railway and any waterway of the Republic;
  2. (b) construct and maintain an electronic communications network or electronic communications facilities upon, under, over, along or across any land, including any street, road, footpath or land reserved for public purposes, any railway and any waterway of the Republic; and
  3. (c) alter or remove its electronic communications network or electronic communications facilities, and may for that purpose attach wires, stays or any other kind of support to any building or other structure.”

The Court considered the multiple Constitutional Court judgments dealing with the “municipal planning” function, including the case of Maccsand Pty Ltd and others v City of Cape Town and others. The Court found that the City of Cape Town’s By-law was indeed applicable. It found that there was no conflict between the ECA and City of Cape Town’s municipal planning By-law. The Court held that it was clear from case law that municipalities’ constitutional legislative power regarding “municipal planning” includes the control of zoning, even in respect of a use of land, such as for telecommunications, which fall within the exclusive authority of national government.

The Court concluded that the municipality had the exclusive legislative competence to regulate zoning of all land in its area for all purposes, regardless of whether the purpose affects a national interest. Consequently, the municipality has the constitutional power and right to regulate the zoning of land to determine whether it may be used for masts. The By-law was found to be valid and the Court, further, found that zoning of land for the use of masts falls within the municipality’s competence of “municipal planning”.

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