Telkom SA Soc Ltd v Kalu NO and Another (10354/2017) [2018] ZAWCHC 53 (10 May 2018)

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[2018] ZAWCHC 53
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Telkom SA Soc Ltd v Kalu NO and Another (10354/2017) [2018] ZAWCHC 53 (10 May 2018)

IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
REPORTABLE
Case Number:
10354/2017
In
the matter between:
TELKOM
SA SOC
LTD
First
Applicant
HILDA
ISABEL KALU N.O. in her capacity as
THE
EXECUTRIX OF THE ESTATE
LATE
BIRCH
KALU
Second
Applicant
and
CITY
OF CAPE
TOWN
Respondent
JUDGMENT
DELIVERED 10 MAY 2018
Andrews
AJ
Introduction
[1]
The Applicants seek a declarator 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.
[2]
In the alternative, the Applicants seek a declarator that the By-law,
the City of Cape Town Zoning Scheme Regulation and the
Mast Policy
are declared unconstitutional and invalid insofar as they require the
Respondent’s consent for the erection of
any telecommunications
infrastructure in its area of jurisdiction.
[3]
In a counter-application, the Respondent seeks a declarator that the
First Applicant’s erection and use of the mast on
the property
of the Second Applicant are unlawful for want of planning
authorisation and building plan approval.
[4]
The application was heard on 13 March 2018. Adv P Ellis (SC) appeared
on behalf of the First and Second Applicants, assisted
by Adv K
Hofmeyr. Adv R Paschke appeared on behalf of the Respondent.
Factual
Background
[5]
On 9 November 2015, Mr Gary Kalu, the owner of the residential
property situated in Heathfield, Cape Town (“the Kalu
property”), entered into an agreement with the First Applicant
(“Telkom”) who is a licensee under the ECA. In
terms of
the agreement, a portion of the residential property of the Second
Applicant would be leased to the First Applicant for
the purposes of
erecting an electronic communications base station infrastructure.
Pursuant thereto, a freestanding base telecommunication
station (“a
mast”) was built without building plan approval or an exemption
under the National Building Regulations
and Building Standards Act
103 of 1977 (“Building Act”).
[6]
The Kalu property is zoned under the By-law as Single Residential 1:
Conventional Housing. Single Residential 1 zoning provides

predominantly for single family dwelling houses and additional use
rights in low- to medium-density residential neighbourhoods.
The
By-law prohibits the erection of a mast on land zoned Single
Residential 1.
[7]
On or about 22 January 2016, the First Applicant applied in terms of
Section 42(a) of the By-law to rezone a 9m
2
portion
of the Kalu property from Single Residential 1 to Utility Zoning in
order to permit a mast on the property. The First Applicant
was
informed on 24 February 2016 that the rezoning application could not
be processed because the said application was incomplete
and because
the requisite application fee was not paid. On 23 March 2016 the
First Applicant provided the outstanding information,
and later paid
the prescribed fee.  On 5 April 2016 the application procedure
was completed in terms of Section 76 of
the By-law; whereafter
the Respondent began processing it. The First Applicant proceeded to
erect a mast on the Kalu property without:
(a) obtaining rezoning of
the Kalu property in terms of the By-law;
(b) building plan
approval or a minor building work exemption under the Building Act;
and
(c) notice to the
Respondent.
[8]
In terms of Sections 99(4) and 130(2) of the By-law, the First
Applicant may not consider an application submitted by a person
who
has contravened the By-law until an administrative penalty has been
determined and paid. To ensure compliance, the Respondent
on 15 April
2016 requested the First Applicant to apply for an administrative
penalty in terms of Section 129 of the By-law. The
First Applicant
failed to apply for an administrative penalty which caused the
Respondent to invite comment from the First Applicant
in terms of
Section 129(3) of the By-law. Consequently, the City Manager complied
by applying for an administrative penalty which
was supported by a
report dated 20 December 2016. Shortly before the City’s
Municipal Planning Tribunal was scheduled to
consider the application
for an administrative penalty, the First Applicant and the Respondent
agreed that the hearing would be
postponed so that the First
Applicant could institute an application for a declaratory order on
the legal issues in dispute.
[9]
It is common cause that the City has not yet considered the merits of
the First Applicant’s application for rezoning of
the Kalu
property.
Issues
for determination
[10]
A number of arguments were raised at the hearing of this application.
However, in light of the conclusion to which I have come,
I will only
deal with the pertinent submissions made in order to address the
crisp issues. To this end, the main issues that require
exploration
and determination are:
(a)
Whether
the By-law and the Mast Policy are in conflict with national
legislation and therefore invalid as provided for in Section
156(3)
of the Constitution.
[1]
(b) Whether the By-law
and Mast Policy overstep the boundaries of municipal planning and
encroaches on an area of national planning.
Parties’
Principal Submissions and applicable law
[11]
The
Electronic
Communications Act
(“ECA”)
[2]
was promulgated with the
stated purpose of providing “for the regulation of electronic
communications in the Republic in the
public interest”.
[3]
The primary section of
the ECA under examination is
Section 22
,
[4]
which appears to grant
extensive statutory rights to electronic service licensees such as
the First Applicant. This Act was examined
by the Constitutional
Court in the matter of
Link
Africa
[5]
wherein the Court
recognized the societal importance of electronic communications:
“
Fast and
reliable electronic communication services have the potential to
improve the quality of life of all people in South Africa.
They
do so through increasing the availability of texts, audio and other
media at schools, universities and colleges, and boosting
business
and employment opportunities.”
[12]
The Applicants contended
that the imperatives of the ECA are underscored by the public’s
right to receive and impart information.
The Applicants in argument
referred to the objects of the ECA
[6]
and argued that in order
for it to achieve these aims, Section 22(1) of the ECA permits
electronic communications network services
licensees the right to
enter upon any land, railway or waterway of the Republic and to
construct and maintain an electronic communications
network or
electronic communications facilities upon, under, over, along or
across that land, railway or waterway.
[13]
In support of these
contentions the Applicants argued that the Constitutional Court, in
Link
Africa
,
has recognised that the unhindered universal role out of electronic
communications services, serves a legitimate and important

legislative purpose, which has attracted considerable public
interest.  Furthermore, in
Link
Africa
it
was recognised that the right to access and construction as
encapsulated in Section 22(1) promotes economic growth, education,

public service delivery and had the potential to improve the quality
of life in South Africa.
[7]
[14]
The legislature,
recognising this pressing need, injected a sense of urgency into the
Act through Section 21
[8]
which calls for the rapid
deployment of communications facilities. However, these rights are
not completely without restraint as
Section 22(2) provides that “
[i]n
taking any action in terms of
subsection
(1)
,
due regard must be had to applicable law and the environmental policy
of the Republic
.”
[15]
The powers of
municipalities derive mainly from Section 156 of the Constitution.
[9]
In terms of its
constitutionally allocated legislative competence the Respondent
promulgated the By-law which seeks to regulate,
among other things,
the use of land.
[10]
In terms of Section 35(2)
of the By-law:
“
No person may
use or develop land unless the use or development is permitted in
terms of the zoning scheme or an approval is granted
or deemed to
have been granted in terms of this By-law.”
[16]
The By-law empowers the
City to enforce compliance through various measures, including the
issuing of directives,
[11]
imposing administrative
penalties,
[12]
and approaching the High
Court for appropriate relief, which may include a demolition
order.
[13]
Furthermore, the By-law
provides that using land “in a manner other than permitted by
the development management scheme”
is an offence exposing the
perpetrator to a fine or imprisonment not exceeding 20 years or
both.
[14]
[17]
In addition to the
By-law, the City has a Mast Policy. The Respondent submitted that the
City has a constitutional mandate to regulate
the use of masts. The
“
overarching
premise
”
of
the Mast Policy “
is
to facilitate the growth of new and existing telecommunications
systems and facilitate the provision of [masts] in an efficient,

cost-effective, environmentally appropriate and sustainable way
”
.
[15]
This Mast Policy
sets out factors that must be taken into account when the Respondent
considers a rezoning application for the construction
of
telecommunication stations.  Part 6 of the Mast Policy
facilitates the mode by which the objectives of the ECA may be
obtained. Additionally, it sets out the relevant statutory framework
with a specific requirement that calls for the Respondent’s

consent for the construction of telecommunication mast
infrastructure.
[18]
The City of Cape Town, in recognition of the increasing importance of
telecommunications to the growth of the economy, reviewed
its
existing telecommunication infrastructure policy in 2015. The
Respondent submitted that the Mast Policy provides that the decision

maker, under the By-law, must consider rezoning, consent use or other
applications to permit the erection and use of a mast, as
well as
relevant objectives and guidelines. According to the Respondent, the
Mast Policy serves to balance economic and communication
objectives
against the environmental and health objectives by recommending the
design and siting of masts so as to mitigate any
potential adverse
impact. The Respondent submitted that the First Applicant has not in
any way challenged the Mast Policy as being
unreasonable.
[19]
This policy furthermore underpins the provisions of the By-law which
require the City’s consent for telecommunications
stations to
be erected in many of the zones under the development management
scheme. Herein lies the central complaint of the First
Applicant,
namely that the By-law, by requiring the municipality’s consent
prior to the exercise of its rights under Section
22 of the ECA, is
in conflict with national legislation.
[20]
The Applicants argued
that the By-law, which requires licensees such as the First Applicant
to obtain the municipality’s consent
prior to constructing
telecommunications masts, is in essence frustrating the purpose of
the ECA. In support of this contention,
the Applicants submitted that
although Section 22(2) of the ECA requires that due regard is to be
had to applicable law, it was
held in
Link
Africa
that
licensees must comply with other laws “
provided
that compliance with applicable law cannot be taken to mean that the
right given to network licensees under s 22 (1) is
defeated or
eviscerated”.
[16]
According to the
Applicants, this implies that if the laws which it is required to
comply with thwarts the purpose of the ECA, then
they are not
required to comply therewith.
[17]
The Applicants
contend that requiring municipality’s consent before the right
can be exercised is in conflict with Section
22 of the ECA and is
accordingly invalid.
[21]
The Applicants referred
to
Dark
Fibre Africa
[18]
,
and whilst conceding that the facts are distinguishable, argued that
it nevertheless bears relevance as the Court found that there
was no
suggestion that the condition imposed by the City made the licence
holder’s access to the City’s land dependant
on its
consent. The Court held that “
[n]owhere
in the papers does it appear that a case has been made out by DFA
that their rights in terms of s 22 have been negated,
that is to the
extent that it cannot implement its ECA right”.
[19]
[22]
In
Maccsand
v City of Cape Town
and Others
,
[20]
the Constitutional Court
was seized with a similar, if not directly analogous, matter
concerning an alleged conflict between provincial
legislation
regulating land use
[21]
and national legislation
regulating mining
[22]
.
The Respondent, referring to
Maccsand
argued that the fact that
the First Applicant may not erect a mast until the land in question
is appropriately rezoned is permissible
in terms of constitutional
imperatives.
[23]
In
Maccsand
the main issue for determination was
whether land over which a mining permit had been granted needed to be
rezoned in terms of
the provincial legislation before mining could
take place. Maccsand, a private company and holder of a mining permit
commenced
to mine sand on a property owned by the City of Cape Town.
The land in question was zoned as public open space and in terms of
provincial legislation, mining was not permitted without rezoning.
The City approached the Court to interdict Maccsand from mining
until
the land had been rezoned. Arguments were raised in that matter which
mirror the arguments of the Applicants.  However,
these
arguments were dismissed by the Constitutional Court which concluded
that, when one considers the constitutional allocation
of powers,
there was no conflict between the provincial and the national
legislation.
[24]
The Respondent submitted that the By-law is valid and does not
conflict with Section 22(1) based on the
Maccsand
principle which is recognised in Section 22(2) of the ECA. Much
emphasis was made by the Applicants, in an attempt to distinguish
Maccsand
,
on the grounds that in that matter the
Court was seized with an examination of an alleged conflict between
national and
provincial
legislation, whereas this matter
concerns an alleged conflict between national and
municipal
legislation.
[25]
This argument is in my
view without substance. In
Maccsand,
the Court found that
there was no conflict and thus did not invoke the conflict-breaking
mechanism prescribed by the Constitution.
Moreover, the principle of
respecting the legislative competence, concomitant authority and
legitimate exercise of power of each
sphere of government is directly
applicable and resolves the dispute in the Respondent’s
favour.
[23]
[26]
The Respondent also
referred to
Habitat
Council
[24]
where this principle was
reinforced. In this matter it was decided that all municipal planning
decisions that encompass zoning lie
within the competence of
municipalities.  By parity of reasoning, the Respondent
contended that zoning of land or a land-use
decision which has
national implications fall within the exclusive competence of
‘municipal planning’.
[27]
The Applicants in further advancement of their argument in
challenging the constitutionality of the By-laws referred to Section

156(3) of the Constitution which essentially provides that a by-law
that conflicts with national or provincial legislation is invalid.

In interpreting Section 156(3), the Applicants argued that even
by-laws that fall within the legislative competence of a municipality

will be invalid to the extent that they conflict with national
legislation. The Respondent however contended that because there
is
no conflict, there is no need to consider the provisions of Section
153(6).
[28]
In order to establish whether the By-law and the Mast Policy are in
conflict with national legislation, it is apposite to establish

whether the Applicants have succeeded in showing that there is indeed
a conflict. In determining whether there is a conflict between
the
By-laws and Section 22 of the ECA, the starting point is to seek
fortitude through the prism of the Constitution.
[29]
Section 172(1) of the Constitution provides that:
“
When deciding a
constitutional matter within its power, a court –
(a)
must
declare that any law or conduct that is inconsistent with the
constitution is invalid to the extent of its inconsistency…”
[30]
The By-law itself expressly provides:
“
When
considering an apparent conflict between this By-law and another law,
a
court
must prefer any reasonable interpretation that avoids a conflict
over
any alternative interpretation that results in a conflict.”
[25]
[31]
It is trite that each
sphere of government is granted autonomy to exercise its powers and
perform its functions within the parameters
of its defined space.
[26]
Furthermore trite is that
a municipality enjoys ‘original’ and constitutionally
entrenched powers, functions, rights
and duties that may be qualified
or constrained by law and only to the extent that the Constitution
permits.
[27]
The Constitution provides
that each sphere of government is enjoined to respect the status,
powers and functions of government in
the other spheres.
[28]
This is foundational to
decide whether the By-law and Mast Policy overstep the boundaries of
municipal planning and encroaches on
an area of national planning.
[32]
The Constitution specifically provides that the functional areas
described in Schedule 4B and 5B are exclusively reserved for

municipalities. In other words, municipalities have exclusive
executive authority over the right to administer schedule 4B and
5B
matters and need no authority from elsewhere to exercise those
powers.  Schedule 5 describes the exclusive provincial powers,

and Schedule 4 describes the concurrent national and provincial
competencies. In both instances, provincial powers exclude the
powers
in Schedule 4B and 5B, which have already been ‘carved out’
for municipalities.
[33]
The First Applicant seeks
to rely on provisions in SPLUMA to argue that the By-law’s
provisions regarding masts are part of
‘national planning’
and not ‘municipal planning’. The First Applicant frames
the issue as a ‘conflict’.
The Applicants identified
diverse impugned provisions in the By-law in relation to the
Respondent’s zoning scheme which regulates
the use rights and
control of land within the City.
[29]
To this end, the First
Applicant claims that the impugned provisions of the By-law exceed
the ambit of ‘municipal planning’
and instead raises a
question of legislative competence.
[34]
The Applicants submitted
that each sphere of government, having been granted autonomy through
the Constitution, exercises it powers
and perform its function within
the parameters of its own defined space. In order to advance this
argument, the Applicants contended
that “municipal planning”
is listed as an exclusively local competency in Part 4 of the
Constitution but suggested
that the concept “planning”
used in the Constitution should be accorded its ordinary dictionary
meaning, thus widening
the interpretation thereof to include spatial
and land use management planning. Additionally, the Applicants
referred to Section
5 of the Spatial Planning and Land Use Management
Act
[30]
(“SPLUMA”)
which distinguishes between municipal, provincial and national
planning within the context of spatial and
land use management
planning.  The Applicants submitted that Section 5(1)(c) of
SPLUMA contains a very important limitation
to the competency of
municipalities relevant to municipal planning as it allocates to
municipalities the power of “control
and regulation” of
the use of land within the municipal area, where the nature, scale
and intensity of the land use do not
affect the national interest.
[35]
According to the Respondent, SPLUMA cannot assist the Court in
deciding the ambit of legislative powers, as an Act of Parliament

cannot be used to interpret the Constitution.  The Respondent
contended that the First Applicant is wrong in claiming that
the
roll-out of electronic communications networks and facilities is an
incidence of ‘national planning’ and is consequently

excluded from the local competence of ‘municipal planning’.
[36]
Additionally, the Respondent avers that even if SPLUMA applies, it
nevertheless provides that a development application which
affects
the national interest much be considered by the relevant
municipality. There are diverse provisions within SPLUMA reinforcing

municipality involvement, such as Section 33(1) which provides that
“
[e]xcept as provided in this Act, all land development
applications must be submitted to a municipality as the authority of
first
instance”.
The Respondent argued that the erection
and use of a mast falls squarely within the ambit of ‘land
development’. This
essentially means that even land development
applications which affect the national interest must be lodged with,
and be considered
by, the relevant municipality.
[37]
The term ‘municipal
planning’ was examined by the Constitutional Court in the
matter of
City
of Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal and Others
:
[31]
“
Returning to
the meaning of ‘municipal planning’, the term is not
defined in the Constitution. But ‘planning’
in the
context of municipal affairs is a term which has assumed a
particular, well-established meaning which includes the zoning
of
land and the establishment of townships.”
[38]
In this regard, I agree with the Respondent’s contention in
that ‘municipal planning’ includes the regulation
of the
use of land for masts. Of pivotal importance is the fact that since
the By-law was enacted in terms of the Constitution,
the permissible
ambit of the By-law is determined by the Constitution and not by
SPLUMA. It follows that SPLUMA can therefore not
assist a court in
deciding the ambit of legislative powers which the Constitution
grants to municipalities.
[39]
The Applicants contention that telecommunication is a matter of
national competence leaving no role for municipalities is in
my view
also without substance. As pointed out by the Respondent, Section
151(4) of the Constitution is the starting point. This
provision
underpins the interdependence of the governmental spheres subject to
the imperative that “
[t]he national or a provincial
government may not compromise or impede a municipality's ability or
right to exercise its powers
or perform its functions.
”
[40]
Local government is not only imbued with power through the
Constitution, it is both an independent and interdependent arm of

government, and also subject to constraints permissible under the
prescripts conferred on it through the Constitution. Section
151(3)
clearly cloaks a municipality with “
the right to govern, on
its own initiative, the local affairs of its community,
subject
to
national and provincial legislation, as provided
for in the Constitution.”
(my emphasis)  Based on this
understanding, the legislature anticipated that governance had to be
dovetailed in order to achieve
the primary objective envisioned in
the ECA. The municipality’s Mast Policy and By-law cannot be
interpreted to mean that
it wishes to regulate the system of
telecommunication. On the contrary, it is my view that it seeks to
give credence to this interpretation.
The Respondent, in my view has
a clear understanding of its constitutional mandate, which is evident
through the amendments it
affected to the By-laws and adoption of the
updated Mast Policy. The ECA requires multiple authorisations from
different spheres
of government under different statutes. It is
therefore evident that such a requirement does not give rise to a
conflict.
[41]
In light hereof, I am not persuaded that a conflict has been
established, thus rendering the argument of the Applicants, that

By-laws are invalid where it conflicts with national law, baseless.
The By-laws are clearly not rendered invalid as contended
by the
Applicants. On the contrary they are valid.
[42]
In the event that I should err in this regard, then regard is to be
had to the provision of Section 149 which reads:
"A decision by a
court that legislation prevails over other legislation does not
invalidate that other legislation, but that
other legislation becomes
inoperative for as long as the conflict remain”
[43]
This Section is contained in the chapter of the Constitution dealing
with "Conflicts between national and provincial legislation".

No decision has been taken under Section 149 and thus the national
legislation is still operative.  In which event, national

legislation would prevail over a By-law as per Section 156(3). The
more relevant argument here concerns the principle that one
sphere
may not usurp the functions of another and that municipalities are
specifically protected from interference. This is reinforced
through
the provision of Section 41(1)(f) of the Constitution which provides
that “
[a]ll spheres of government and all organs of state
within each sphere must…not assume any power or function
except those
conferred on them in terms of the Constitution
”.
[44]
The Applicants argued that even by-laws that fall within the
legislative competence of a municipality will be invalid to the

extent that they conflict with national legislation. Having regard to
the aforegoing, I do not agree with the Applicants’
argument
pertaining to the provision in the Constitution concerning the
interpretation of conflicts. The Applicants specifically
referred to
Section 150 of the Constitution which is silent on conflicts
apropos
municipalities. This provision, in my view should not be read in
isolation. The entire sub-chapter commencing from Section 142
up to
and including Section 150 deals with Provincial Constitutions and
conflicting laws in relation to national and provincial
legislation.
It is my view that these provisions were not intended to cover
conflicts between municipal and / or national and /
or provincial
legislation. In my view, the Applicants argument is clearly taken out
of context.
[45]
Chapter 7 of the Constitution, which is the very next chapter after
Section 150, deals exclusively with local government.
Section
156(3) only cross-references to one provision in the preceding
chapter, namely Section 149 (quoted above).  In this
regard,
Section 156(3) reads:
“
Subject to
section 151 (4), a by-law that conflicts with national or provincial
legislation is invalid.
If
there is a conflict between a by-law and national or provincial
legislation that is inoperative because of a conflict referred
to in
section 149, the bylaw must be regarded as valid for as long as that
legislation is inoperative.
”
(my emphasis)
[46]
The Respondent argued
that the Constitutional Court has made it clear that courts are duty
bound to read the provisions of the legislation
in conformity with
the Constitution and are encouraged to avoid conflicts with the
Constitution where reasonably possible.
[32]
This means that a court
when considering an apparent conflict between a By-law and national
or provincial legislation is enjoined
to prefer any reasonable
interpretation which avoids a conflict, over any alternative
interpretation that results in conflict.
[47]
According to the Respondent, there is no indication in the language
of Section 22(1) that it exempts a licensee from obtaining
rezoning
required by law. Additionally, there is nothing in the provisions of
the ECA which indicate that its purpose is to regulate
zoning or land
use. It is clear that the ECA regulates electronic communication,
while the By-law regulates zoning and use of land.
Moreover, it is
pellucid that the Respondent has, through the amended Mast Policy and
updated By-laws, sought to collaborate with
the constitutional vision
pertaining to telecommunication infrastructure. The Applicants have
not, according to the Respondent,
suggested that any of the
considerations in the Mast Policy are inappropriate nor did the
Applicants challenge the reasonableness
of the Mast Policy.
[48]
The Applicants submitted that Section 22 has been authoritatively
interpreted so as to trump the fundamental right of ownership.
I do
not agree with this contention. It is my view that the Applicants are
misinterpreting the
Link Africa
decision. Section 22
cannot operate in a vacuum. I agree with the Respondent’s
contention that  it has to co-exist
in a web of other laws
including municipal by-laws.  I am therefore of the view that
the Respondent’s zoning requirements
do not conflict with
Section 22(1) because before a licensee may exercise its right in
terms of Section 22(1) of the ECA, the licensee
must comply with all
applicable law, including laws enacted by the municipality. As
Section 22(2) clearly provides that “
due regard must be had
to applicable law and the environmental policy of the Republic”
,
it follows that apart from the municipality’s consent, which is
required in terms of the By-law, the licensee is still required
to
obtain all other permits, licenses and authorisations required by law
which do not constitute a ‘municipality’s
consent’,
such as rezoning or departure, building plan approval or exemption
(which the First Applicant concedes is required),
environmental
authorisations, heritage authorisation, and civil aviation permits,
amongst others. It is for these reasons that
I am not in agreement
with the Applicants’ contention that the By-law and the Mast
Policy exceed the boundaries between spheres
of planning law.  I
am not persuaded that it is the intention of the legislature to grant
a licensee unqualified rights to
conduct activities on land without
obtaining any permit, license or authorisation required by any law
from any authority. If this
were so, the public would be without the
protection of a range of constitutionally compliant laws which serve
the public interest.
[49]
Consequently, I am not in agreement with the Applicants contention
that because the Respondent seeks to impose limitations
on licensees
to exercise their rights and duties in terms of Section 22(1) of the
ECA, the By-law and Mast Policy should be declared
unconstitutional
and invalid. Inasmuch as this matter concerns a constitutional
consideration, I am not persuaded that the Applicants
have succeeded
in showing that the City of Cape Town Municipal Planning By-laws, the
City of Cape Town Zoning Scheme Regulations
and the City of Cape Town
Telecommunications Mast Infrastructure Policy are unconstitutional
and invalid to the extent that they
require the Respondent’s
consent for the erection of telecommunication infrastructure in its
area of jurisdiction.
Respondent’s
Counter-Application
[50]
The Applicants indicated that they no longer persist in their
opposition to the counter-application insofar as it relates to
the
absence of building plan approval for the telecommunications mast
that was erected on the Second Applicant’s property.
[51]
The First Applicant conceded that unless exempted, a licensee must
comply with the requirements of the Building Act and as
such requires
building plan approval for the mast on the Kalu property. The
Respondent argues that on this ground alone, it is
entitled to the
order sought in the counter-application. It was further submitted
that the First Applicant’s defences have
no merit, and that the
Respondent has made a case for the declarator that the Applicants’
conduct is unlawful.
[52]
On the Applicants’ concession alone, the Respondent’s
counter-application should succeed.
Conclusion
[53]
The Constitutional Court authorities referred to above have firmly
established 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.
Link Africa
and
Maccsand
support the conclusion that the By-law does not conflict with Section
22 of the ECA. In keeping with the Constitutional Court’s

findings, it is overtly clear that a municipality must regulate land
use, including matters which affect national interests.
[54]
Therefore, I find that the Respondent has 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 Respondent has the constitutional
power
and right to regulate the zoning of land to determine whether it may
be used for masts. I find that the By-law is valid and
that the
zoning of land for the use of masts falls within the Respondent’s
competence of “municipal planning”.
[55]
In the result the following orders are made:
(a) The Applicants’
application is dismissed with costs.
(b) The erection of a
freestanding base telecommunications station on Erf 80708, 47 Fourth
Road, Heathfield, Cape Town (the property)
on or about April 2016 is
declared to be unlawful.
(c) The use and
development of the property for the purposes of a freestanding base
telecommunications station is declared to be
unlawful.
(d) The First Applicant
(Telkom) is to pay the costs of the Respondent’s (the City’s)
counter-application.
____________________________
P
ANDREWS, AJ
Acting
Judge of the High Court
REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
Number: 10354/2017
In
the matter between:
TELKOM
SA SOC
LTD
First Applicant
HILDA
ISABEL KALU N.O. in her capacity as
THE
EXECUTRIX OF THE ESTATE
LATE
BIRCH
KALU
Second
Applicant
and
CITY
OF CAPE
TOWN
Respondent
CIVIL
JUDGE

:
Andrews
A J
JUGDMENT
DELIVERED BY
:
Andrews AJ
FOR
APPLICANT

:
Adv.
P Ellis SC, Assisted by: Adv K Hofmeyr
INSTRUCTED
BY
:
Hogan Lovells (South Africa) Inc.
FOR
RESPONDENT

:
Adv.
R Paschke
INSTRUCTED
BY
:
Webber Wentzel
DATE
OF HEARING

:
13
March 2018
DATE
OF JUDGMENT
:
10
May 2018
[1]
The
Constitution of the Republic of South Africa.
[2]
36 of 2005.
[3]
Ibid
at section 2.
[4]
“
Section
22. Entry upon and construction of lines across land and waterways
.
(1)  An
electronic communications network service licensee may—
(a)
enter upon any land, including any street, road, footpath or land
reserved for public purposes, any railway and any waterway
of the
Republic;
(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
(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.”
[5]
City of
Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and Others
2015 (6) SA 440
(CC)
(
Link
Africa
)
at para 121.
[6]
Sections
2; 2(c); and 2(g) of the ECA.
[7]
Link
Africa
at
paras
36, 120-1 and 180.
[8]
This section provides:
“
Rapid
deployment of electronic communications facilities.—
(1)
The Minister must, in consultation with the Minister of Cooperative
Governance and Traditional Affairs, the Minister of Rural

Development and Land Reform, the Minister of Water and Environmental
Affairs, the Authority and other relevant institutions,
develop a
policy and policy directions for the rapid deployment and
provisioning of electronic communications facilities, following

which the Authority must prescribe regulations.
”
[9]
“
Powers
and functions of municipalities
(1)
A municipality has executive authority in respect of, and has the
right to administer-
(a)
the local government matters listed in Part B of Schedule 4 and Part
B of Schedule 5; and
(b)
any other matter assigned to it by national or provincial
legislation.
(2)
A municipality may make and administer By-laws for the effective
administration of the matters which it has the right to administer.
(3)
Subject to section 151 (4), a By-law that conflicts with national or
provincial legislation is invalid. If there is a conflict
between a
By-law and national or provincial legislation that is inoperative
because of a conflict referred to in section 149,
the bylaw must be
regarded as valid for as long as that legislation is inoperative.
(4)
The national government and provincial governments must assign to a
municipality, by agreement and subject to any conditions,
the
administration of a matter listed in Part A of Schedule 4 or Part A
of Schedule 5 which necessarily relates to local government,
if-
(a)
that matter would most effectively be administered locally; and
(b)
the municipality has the capacity to administer it.
(5)
A municipality has the right to exercise any power concerning a
matter reasonably necessary for, or incidental to, the effective

performance of its functions.”
[10]
The preamble to the By-law reads:
“
WHEREAS
section 156(1) of the Constitution of the Republic of South Africa,
1996 confers on municipalities the executive authority
and right to
administer local government matters set out in Part B of Schedule 4
and Part B of Schedule 5 to the Constitution;
WHEREAS
Part B of Schedule 4 to the Constitution lists municipal planning as
a local government matter;
WHEREAS
section 156(2) of the Constitution empowers municipalities to make
and administer laws for the effective administration
of matters that
it has the right to administer
”.
[11]
Section 128.
[12]
Section 129.
[13]
Section 131.
[14]
Section 133.
[15]
Part 2 of the Mast Policy.
[16]
Ibid
at
para
126.
[17]
Ibid
at
para
189.
[18]
[2017] ZAWCHC 151.
[19]
Ibid
at para 78.
[20]
2012 (4) SA 181
(CC) (
Maccsand
).
[21]
Land Use Planning Ordinance 15 of 1985 (LUPO).
[22]
Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA).
[23]
See
Dark
Fibre Africa (Pty) Ltd v City of Cape Town
[2017]
ZAWCHC 151
at para 77.
[24]
Minister
of Local Government, Environmental Affairs and Development Planning,
Western Cape v The Habitat Council and Others; Minister
of Local
Government, Environmental Affairs and Development Planning, Western
Cape v City of Cape Town and Others
2014
(4) SA 437
(CC) at para 19.
[25]
Section 2(3).
[26]
See
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999
(1) SA 374
(CC) at para 126 and
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal and Othe
rs
2010 (6) SA 182
(CC) at para 43 “
Section
40 of the Constitution defines the model of government contemplated
in the Constitution. In terms of this section the
government
consists of three spheres: the national, provincial and local
spheres of government. These spheres are distinct from
one another
and yet interdependent and interrelated. Each sphere is granted the
autonomy to exercise its powers and perform its
functions within the
parameters of its defined space. Furthermore, each sphere must
respect the status, powers and functions
of government in the other
spheres and ―not assume any power or function except those
conferred on [it] in terms of the
Constitution.
”
[27]
City of
Cape Town and Another v Robertson and Another
[2004] ZACC 21
;
2005
(2) SA 323
(CC) at paras 59-60.
[28]
Section 41 of the Constitution.
[29]
See
Sections
24(1), 25(1), 26 (1), 26(3), 35(2), 39, 42(a) of the By-law.
[30]
16 of 2013.
[31]
2010 (6) SA 182
(CC) at para 57.
[32]
See
Cool
Ideas 1186 CC v Hubbard and Another
2014
(4) SA 474
(CC) at para 28(c).