In terms of section 22 of the Electronic Communications Act, 36 of 2005 (ECA), an electronic communications network service (ECNS) licensee (that is, a telecommunications network operator) may:
- enter upon any land, including any street, road, footpath or land reserved for public purposes, any railway and any waterway of the Republic;
- 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
- 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.
In doing so, the licensee must have due regard to applicable law and the environmental policy of the Republic.
At the heart of the Telkom matter was the question of whether ECNS licensees are obliged to comply with property zoning bylaws and policies when exercising their rights in terms of section 22 of the ECA.
During 2015, Telkom, a state-owned ECNS licensee concluded a lease agreement with the owner of a property in a residential suburb which Telkom identified as a suitable site for a mast. In terms of the lease agreement, Telkom was permitted to erect a mast on the property but the residential property was zoned as single residential zone 1 under the bylaws of the City of Cape Town (City), which did not allow for the construction of cellular masts.
In January 2016 Telkom applied for the rezoning of a portion of the property so as to permit the construction of a mast. Telkom built the mast on the property before receiving the City’s approval for rezoning. Local residents objected to the mast and complained to the City which responded by imposing an administrative penalty on Telkom and putting its application for rezoning on hold pending payment of the penalty.
Telkom approached the High Court challenging the validity of the City’s bylaw and policy. It contended that the City lacked power to make the bylaw and the policy, which impacted on the field of electronic communications which fell under the competence of the national sphere of government. Telkom also argued that both the bylaw and the policy were invalid for being in conflict with section 22.
The City opposed Telkom’s application and brought a counterapplication seeking an order declaring that Telkom had built the mast unlawfully in breach of the National Building Regulations and Building Standards Act, 103 of 1977 (Building Standard Act) which required that the City’s consent be obtained before the mast was erected. In response, Telkom contended that the Building Standards Act did not apply to it because it was part of the State.
The High Court found in favour of the City and held that Telkom could not erect masts without the City’s consent. Telkom’s argument that it was not subject to the Building Standards Act as well as its argument that a mast was not a building were apparently abandoned in the High Court.
The Supreme Court of Appeal (SCA) in turn accepted that Telkom abandoned the arguments relating to the Building Standards Act and ultimately rejected Telkom’s argument that the City’s zoning bylaws and mast policy conflicted with section 22 of the ECA.
Decision of the Constitutional Court
In a unanimous judgment handed down on 25 June 2020, the Constitutional Court dismissed Telkom’s application for leave to appeal against the decision of the SCA, which had dismissed an appeal by Telkom.
Telkom’s case in the Constitutional Court (CC) rested on two main arguments, namely the competence argument and the conflict argument.
Telkom argued that the City did not have legislative power to regulate telecommunications and that municipal planning, insofar as it affected the building of telecommunications infrastructure, went beyond the scope of municipal powers. Telkom implored the CC to apply a narrow interpretation of municipal planning and effectively exclude “the control and use of land for laying down telecommunications infrastructure” from the scope of municipal powers.
The CC pointed out that municipal planning forms part of the powers and functions conferred on municipalities in terms of section 156(1) of our Constitution and that municipalities alone exercise the power to zone and subdivide land. The notion that other spheres of government could disregard municipal zoning schemes or bylaws giving effect to municipal planning and use land as they wish, would amount to a serious breach of the Constitution.
The court concluded that Telkom’s interpretation of municipal planning was constitutionally flawed. Section 151(4) of the Constitution prohibits national and provincial government from impeding a municipality’s right to exercise its powers. As such, an attempt to curtail municipal powers in the fashion proposed by Telkom was contrary to the Constitution’s aim to provide municipalities with powers to control and regulate the use of land within their jurisdictions.
Section 156(3) of the Constitution provides that a bylaw that is in conflict with national legislation is invalid. Telkom relied on this provision to support its case, stating that the bylaw in question was in conflict with section 22(1) of the ECA as it required licensees to first obtain municipal approval before exercising their right to erect infrastructure in the City.
However, the CC held that section 156(3) may only be invoked in cases where there is a real conflict between bylaw and national legislation. What constitutes a real conflict goes beyond bylaws that prescribe how parties may exercise certain rights in terms of national legislation. A party will only be able to successfully raise an issue of a conflict if the two pieces of legislation cannot reasonably operate alongside each other. Consequently, where there is an inadvertent overlap between the regulation of municipal planning and telecommunications, licensees may not arbitrarily elect to disregard bylaws.
The CC also indicated that section 22(1) of the ECA could not be considered in isolation, as section 22(2) also expressly provides that licensees must give due regard to applicable law. Applicable law, in this instance, included municipal bylaws. The only exception, as explained by the CC in City of Tshwane v Link Africa and Others 2015 (6) SA 440 (CC), is where the sole purpose of a bylaw is to thwart the purpose of a statute by requiring the municipality’s consent. The present dispute, however, did not fall within this exception.
The CC has once again confirmed that it is essential for ECNS licensees to comply with municipal bylaws when exercising their rights in terms of section 22 of the ECA. This confirmation holds licensees accountable, empowering municipalities (and property owners) to ensure that licensees abide by the bylaws of their specific municipality, especially property zoning bylaws.