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[2019] ZASCA 121
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Telkom SA SOC Ltd v City of Cape Town and Another (1038/2018) [2019] ZASCA 121; [2019] 4 All SA 682 (SCA); 2020 (1) SA 514 (SCA) (25 September 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1038/2018
In
the matter between:
TELKOM
SA SOC
LTD APPELLANT
and
CITY
OF CAPE
TOWN FIRST
RESPONDENT
ESTATE
LATE BIRCH
KALU SECOND
RESPONDENT
Neutral
citation:
Telkom SA SOC Ltd v City
of Cape Town
(1038/2018)
[2019] ZASCA
121
(25 September 2019)
Coram:
Leach, Tshiqi, Wallis, Mocumie and Dlodlo JJA
Heard
:
12 September 2019
Delivered
:
25 September 2019
Summary:
Erection of telecommunications
infrastructure – public servitude in favour of licensee in
terms of
s 22(1)
(a)
of the
Electronic Communications Act 36 of 2005
– whether
entitling licensee to enter upon land and erect telecommunications
infrastructure contrary to zoning provisions
in municipal by-laws
without obtaining consent to rezoning from municipality in terms of
those by-laws – whether by-laws
requiring such rezoning and
consent unconstitutional – whether municipal policy in respect
of the erection of telecommunications
infrastructure an encroachment
upon a national sphere of legislative competence.
ORDER
On
appeal from:
Western Cape Division of
the High Court (Andrews AJ, sitting as court of first instance):
The
appeal is dismissed with costs, such costs to include those
consequent upon the employment of two counsel.
JUDGMENT
Wallis
JA (Leach, Tshiqi, Mocumie and Dlodlo JJA concurring)
[1]
In 2017, in order to
extend its mobile electronic communication network coverage in and
around Cape Town, the first appellant, Telkom
SA SOC Ltd (Telkom),
planned to develop 135 sites for the erection of freestanding base
telecommunication stations (FBTS), commonly
referred to as cell phone
masts, and rooftop base telecommunication stations (RBTS). One of the
sites, on which it proposed to
erect an FBTS, was a property owned by
the estate of Mr Birch Kalu, the second respondent,
[1]
situated in the suburb of Heathfield, Cape Town. The Municipal
Planning By-Law (the by-law) of the City of Cape Town (the City),
[2]
the first respondent, makes provision, as part of the overall zoning
of the city, for the establishment and erection of both FBTS
and
RBTS.
[3]
However, the estate’s property is zoned Single Residential Zone
1 under the by-law and that is a zoning that does not permit
the
erection of either an FBTS or an RBTS.
[2]
In order to overcome this difficulty,
Telkom applied on 18 January 2016 for the rezoning of a portion of
the estate’s property
to Utility, which permits the
establishment and erection of an FBTS. Telkom did not, however, wait
for the City’s approval
of its application, but went ahead, two
weeks later, and erected the FBTS. This prompted an outcry from local
residents. The City
then informed Telkom that it was in breach of the
by-law and should seek an administrative penalty, before pursuing its
application.
Instead, Telkom launched the present proceedings to
challenge the constitutional validity of the by-law and the City’s
related
Telecommunications Mast Infrastructure Policy (the Policy).
[3]
The city opposed the application and
counter-applied for an order that the FBTS had been erected without
its consent first being
obtained, in breach of the National Building
Regulations and Building Standards Act 103 of 1977 (the Standards
Act). The application
came before Andrews AJ who dismissed it and
granted an order in terms of the City’s counter-application,
declaring that the
erection, use and development of the FBTS on the
Heathfield property was unlawful. This appeal is with her leave.
The
issues
The
counter-application
[4]
Telkom originally opposed the
counter-application on two grounds. The first was that Telkom was the
State for the purposes of the
Standards Act and therefore exempt from
the need to comply with its provisions. The second was that a mast
was not a building as
defined in s 1 of the Standards Act. This
argument was advanced on the narrow basis that, contrary to the
contentions of the City,
it did not fall within sub-para
(a)
(iii)
of the definition, which in material part defines a building as:
‘
any other structure, whether
of a permanent or temporary nature and irrespective of the materials
used in the erection thereof,
erected or used for or in connection
with—
…
(iii) the rendering of any service’
It
is the latter element of its argument on the counter-application that
requires some attention in this judgment.
[5]
The argument was advanced in Telkom’s
answering affidavit in the counter-application on the basis that, if
regard was had
to a separate provision in the definition dealing with
the incidental provision of services such as water supply, drainage,
sewerage,
stormwater disposal, electricity supply and similar
services, services in this portion of the definition related to
services to
the building. It was submitted that all the other
structures listed in the definition accommodated a human activity,
whilst a telecommunications
facility was an automated facility
requiring no human intervention. On that footing it was submitted
that:
‘…
an electronic
communications facility such as the mast which forms the subject
matter of this application, does not fit into the
definition of
“
building”
in terms of the Building Act.’
[6]
The proposition in the affidavit was
entirely general and not restricted to the particular mast being
erected on the estate’s
property. It claimed that masts were
not buildings for the purposes of the Standards Act. This argument
was then abandoned in the
High Court. The abandonment was recorded by
the judge in the following terms:
‘
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.
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
.’
(Emphasis added)
[7]
Lest there could be any doubt about the
effect of this concession, in its application for leave to appeal
Telkom said:
‘
The court recorded the
applicants’ concession that approval under the National
Building Regulations and Building Standards
Act 103 of 1977 was
required for a mast to be erected on the Kalu property … but
then used this as a basis to grant declaratory
relief …
broader than the extent of the concession. This was an error.
The
applicants’ concession only went as far as the requirement for
Building Act approval was concerned
.’
(Emphasis added.)
Although
the application for leave to appeal was granted in terms, the notice
of appeal subsequently delivered did not persist in
attacking the
relief granted in the counter-application. As matters stood therefore
when this appeal was heard there was no issue
between the parties in
regard to the proposition that the erection of masts without first
obtaining the approval of the City under
the Standards Act was
unlawful.
[8]
In the course of
argument counsel for the City asked that we incorporate in this
judgment an endorsement of the high court’s
order. The reason
was that he was instructed that Telkom did not accept that a mast was
a building requiring it to seek consent
in terms of the Standards Act
to erect either an FBTS or an RBTS. That attitude was reflected in a
letter dated 12 July 2019
furnished to us after the hearing and
addressed by Telkom’s attorneys to the National Director of
Public Prosecutions. The
letter relied upon an unreported
decision in the Gauteng Division of the High Court, Pretoria in which
it was held that a telecommunications
mast was not a building under
the Standards Act because it did not fall under sub-para
(e)
of the definition of ‘building’ in that Act.
[4]
The decision did not assist Telkom, because the judgment in this case
in the High Court was based upon the proposition that a
telecommunications mast was a building under sub-para
(a)
(iii)
of the definition quoted above.
[9]
At the hearing we
raised the City’s request with Telkom’s counsel. After
taking instructions he gave us the firm assurance
that Telkom now
accepts that it is obliged to obtain building plan approval under the
Standards Act before constructing either
form of base station.
[5]
The acceptance was expressly premised on both the high court order
and the judgment of the Constitutional Court in
Link
Africa
.
[6]
To our surprise, after this judgment had been prepared in draft and
circulated among the members of the court, the registrar received
a
further letter from the City’s attorneys repeating counsel’s
request. The request was made in the light of a letter
from Telkom’s
attorneys dated 13 September 2019 asserting that counsel’s
undertaking was restricted to the estate’s
property and was not
a general undertaking relating to the erection of all base stations.
According to the letter of 13 September
2019, Telkom’s
attitude was that it wished to reserve the right to argue in due
course that there may be a distinction between
‘the structural
features of a given mast and the definition of a building in the
Building Regulations Act’.
[10]
The letter of 13
September 2019 does not correctly reflect the assurance we were
given. Notes of the argument show that counsel
said that, since the
judgment in the court below ‘Telkom concedes that it must
comply with the building regulations’
[7]
He added that it was unnecessary for the declaratory order to be
amplified or restated, as Telkom accepted it was bound. Finally
he
said ‘The Constitutional Court has spoken.’ There was no
question in anyone’s mind that he was referring to
the
statement in the final sentence of para 189 of the majority judgment
in
Link Africa
that,
if by-laws exist regulating the manner in which a licensee should
exercise its powers, ‘the licensee must comply’.
What he
conveyed to the bench was that Telkom accepted the application of the
Standards Act and any building by-laws to the erection
of masts. The
endeavour to suggest in the letter to the registrar from Telkom’s
attorney dated 13 September 2019 that there
may be circumstances in
which that Act and any such by-laws do not apply in relation to
obtaining building plan approval to the
construction of either an
FBTS or an RBTS, is inconsistent with the undertaking given by Telkom
to this court. There is no reason
why Telkom should not be bound by
its undertaking, given that it meant that the court did not take
further the request on behalf
of the City.
The
constitutional challenge
[11]
Accordingly the appeal is solely concerned
with the constitutional challenge. In addressing that challenge,
nothing turns on the
precise language of the relevant provisions of
the by-law or, save in one respect, the terms of the Policy. It
suffices to know
that Cape Town is divided into various zones for
planning purposes. In some of those zones the erection of either an
FBTS or an
RBTS is prohibited. In others, they may be erected with
the consent of the City, with more zones permitting a consent user in
respect
of RBTS than FBTS. Finally there are zones where both forms
of base station are permitted users and may be erected without any
special consent being required. Telkom objects to the fact that, in
order for it to erect base stations, it is sometimes required
by the
by-law to obtain a change in zoning of the property and sometimes the
City’s consent.
[12]
Telkom based its case on section 22 of the
Electronic Communications Act 36 of 2005 (the Act), which reads as
follows:
‘
Entry upon and construction
of lines across land and waterways.
(1) An electronic communication 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, and 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.
(2) In taking any action in terms of
subsection (1), due regard must be had to applicable law and the
environmental policy of the
Republic.’
[13]
The argument was that
this section empowered Telkom to enter upon any land selected by it
and erect base stations, without seeking
the consent of the owner
[8]
or anyone else, including the City. Insofar as the by-law prevented
it from doing that in certain zones, without obtaining municipal
consent to a rezoning or consent to the property’s use for that
purpose, it contended that it was in conflict with s 22(1)
of the Act
and was therefore invalid.
[14]
The Constitutional
Court considered this particular section in
Link
Africa
and
Telkom relied upon the following passage in the majority judgment:
[9]
‘
These provisions indicate that
licensees, though empowered by national legislation, must abide by
municipal by-laws.
The only limit is
that by-laws may not thwart the purpose of the statue by requiring
the municipality’s consent.
If
by-laws exist that regulate the manner (what counsel called the
“modality”) in which a licensee should exercise
its
powers, the licensee must comply.’ (Emphasis added.)
[15]
It is helpful to appreciate the narrowness
of the right for which Telkom contended. It no longer contended, as
it did before the
High Court, that it might erect base stations
without obtaining building plan approval in terms of the Standards
Act from the City
(or any other affected authority). Nor did it
contend, before this court, that it was exempt from the operation of
any by-law governing
matters such as the dimensions of a structure,
the materials from which it was made, the observance of safety
regulations and the
like. Its only argument was that it was free to
select where to situate base stations without any interference from
the City, or
any need to obtain its consent to the use of the sites
it chose for that purpose. It contended that the provisions of the
by-law
that gave the City the power to withhold consent to rezoning
for such purposes or required its consent to the erection of a base
station in certain areas, went beyond its legislative competence.
Alternatively, it argued that these provisions gave rise to a
conflict with national legislation governing telecommunications and
that conflict fell to be resolved in favour of the national
legislation.
The
City’s legislative competence
[16]
In terms of s 156(1)
of the Constitution a municipality has executive authority and the
right to administer the local government
matters listed in Part B of
Schedule 4. Relevant for present purpose is municipal planning.
Municipalities may make and administer
by-laws for the effective
administration of these matters.
[10]
The by-law in issue in this case was made pursuant to that power.
[17]
The nature of municipal
planning has been explained in several authoritative judgments. Thus
Yacoob J said:
[11]
‘
The zoning of land and the
question whether sub-division should be allowed in relation to any
land is essentially a planning function
in terms of Schedule 4 and
Schedule 5 to the Constitution. … Our Constitution requires
municipal planning to be undertaken
by municipalities.’
In
this court, Nugent JA said:
[12]
It is clear that the word “planning”, when
used in the context of municipal affairs, is commonly understood to
refer
to the control and regulation of land use, and I have no doubt
that it was used in the Constitution with that common usage in mind.’
In
the Constitutional Court in the same case, Jafta J endorsed this
approach and said:
[13]
‘
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. In that context, the term is commonly used to define the
control and regulation of
the use of land. There is nothing in the
Constitution indicating that the word carries a meaning other than
its common meaning
which includes the control and regulation of the
use of land. It must be assumed, in my view, that when the
Constitution drafters
chose to use “planning” in the
municipal context, they were aware of its common meaning. Therefore,
I agree with the
Supreme Court of Appeal that in relation to
municipal matters the Constitution employs ‘planning’ in
its commonly understood
sense.’
[18]
This jurisprudence establishes in robust terms both the scope of the
competence of municipal planning and that it is to be
protected
against intrusion by either national or provincial government. That
appears from the following passage in the judgment
in
Lagoonbay
:
[14]
‘
This
Court’s jurisprudence quite clearly establishes that: (a)
barring exceptional circumstances, national and provincial
spheres
are not entitled to usurp the functions of local government; (b) the
constitutional vision of autonomous spheres of government
must be
preserved; (c) while the Constitution confers planning
responsibilities on each of the spheres of government, those
are
different
planning
responsibilities, based on “what is appropriate to each
sphere”; (d) ‘“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
’
(emphasis added); and (e) the provincial competence for “urban
and rural development” is not wide enough to
include powers
that form part of “municipal planning”.’(Footnotes
omitted.)
[19]
There can be no doubt then that the by-law was, in principle, a
proper exercise of the municipal planning competence given
to all
municipalities by the Constitution. Recognising this, counsel for
Telkom argued in their heads of argument that the by-law
purported to
regulate telecommunications and, to the extent that it did so, it
went beyond the municipal competence. The essence
of the argument was
that, because the effect of the by-law’s zoning provisions was
to restrict Telkom’s ability to
locate base stations and other
telecommunications infrastructure at sites of its own choosing, this
amounted to the regulation
of telecommunications. The point was
summarised in the following terms in Telkom’s practice note:
‘
The City of Cape Town has no
legislative competence over telecommunication. To the extent,
therefore, that the By-law regulates
the roll-out of
telecommunications infrastructure, it is beyond the municipality’s
competence and therefore invalid.’
[20]
The difficulty with this approach was that, if applied in that
fashion, it would effectively exclude the municipality from
engaging
in the zoning that has been held to lie at the heart of municipal
planning. The exclusion would not be confined to telecommunications
infrastructure. It would also extend to matters such as
infrastructure for the provision of electricity or the supply of bulk
water. In designating land as zoned for hospital purposes it would
trench upon national and provincial areas of exclusive legislative
competence in regard to public health and the provision and siting of
healthcare facilities. The same would apply to zones demarcated
for
schools or education purposes. Zoning provisions directed at
preventing the siting of casinos and gambling activities, in the
vicinity of schools or places of worship, would infringe upon
provincial powers in regard to the licencing of such establishments,
a material part of which is always the location in which the premises
are situated. Housing is a national and provincial area of
legislative competence. Would that mean that the national and
provincial housing authorities could override municipal zoning
provisions
setting out the areas in which housing can be constructed
and determining the nature of the housing to be erected in each zone?
The examples can be multiplied, but these should suffice.
[21]
The flaw in the argument, as counsel for the City pointed out, is
that, if it were correct, the breadth of the legislative
competence
of national and provincial legislatures when compared to
municipalities, would subordinate the latter to the former
to a point
where the municipal competence would be deprived of any useful
content and become a shell. But that is not the aim of
the
Constitution, which provides in s 41(1) that all spheres of
government must:
‘
(e)
respect
the constitutional status, institutions, powers and functions of
government in the other spheres;
(f)
not
assume any power or function except those conferred on them in terms
of the Constitution;
(g)
exercise
their powers and perform their functions in a manner that does not
encroach on the geographical, functional or institutional
integrity
of government in another sphere …’
In
s 151(4) the Constitution provides that neither the national nor
the provincial government may compromise or impede a municipality’s
ability or right to exercise its powers or perform its functions.
Contrary to the argument addressed to us, the approach of the
Constitution is to support the exercise by a municipality of its core
competence and to preclude other spheres of government from
interfering therewith.
[22]
Telkom’s argument amounted to national government removing, by
way of s 22(1) of the Act, the power of municipalities
to
determine by way of zoning where provision was to be made within
their areas of jurisdiction for the erection of telecommunications
infrastructure. The impact of such facilities on the urban
environment would be outside the regulatory powers of municipalities
insofar as their positioning was concerned. That power would then be
vested in the licensees under the Act.
[23]
The starting point of the argument that telecommunications was a
national legislative competence and therefore that all aspects
of
telecommunications, down to and including the location of
telecommunications infrastructure, must therefore fall outside the
scope of municipal planning, was wrong. As Nugent JA pointed out in
Gauteng Development
Tribunal
(SCA)
[15]
this inverted the enquiry. In a passage that the Constitutional
Court
[16]
said ‘illuminated the proper approach to the Constitution’s
allocation of governmental powers’ and bears repetition,
he
said:
‘
It
is to be expected that the powers that are vested in government at
national level will be described in the broadest of terms,
that the
powers that are vested in provincial government will be expressed in
narrower terms, and that the powers that are vested
in municipalities
will be expressed in the narrowest terms of all. To reason
inferentially with the broader expression as the starting
point is
bound to denude the narrower expression of any meaning and by so
doing to invert the clear constitutional intention of
devolving
powers on local government.’
[24]
Telkom’s counsel accepted that generally speaking this was the
correct approach, but submitted that there was an exception
to the
general proposition. This arose in part, he said, from the fact that
municipal planning fell to be considered against the
background that
the entire country now falls within some or other local government
area. The result, so he submitted, was that
cross-municipal networks,
such as the national electricity grid, telecommunications and roads,
should be treated as being matters
that could not be subjected to
municipal planning regulation. He postulated the situation where one
municipality required a telecommunications
licensee to follow a
particular route for the installation of its infrastructure across
the area of that municipality to a point
I will call ‘A’,
but the adjacent municipality would not, in accordance with its own
planning by-laws, allow the infrastructure
to enter its jurisdiction
at ‘A’, requiring instead that it enter at ‘B’.
[25]
In substance the submission raised two arguments that the
Constitutional Court dealt with and rejected in
Habitat
Council
. The one
was that when dealing with major planning issues, such as those
arising in the scenario outlined by counsel, ‘parochial
municipal interests’ would prevail. The answer given by the
Constitutional Court was that, as a matter of constitutional
design,
parochial interests should prevail on subdivision and zoning
decisions.
[17]
[26]
The second argument was that leaving these zoning decisions to every
municipality served by a cross-municipal network would
undermine the
ability to engage in the national or provincial planning that
underpins the provision of such networks. The Constitutional
Court
rightly said that this was a bogey that had to be slain.
[18]
It pointed out that national and provincial government have
legislative competence over regional planning and development and
provincial government has exclusive legislative competence over
provincial planning.
[19]
These powers can be exercised in ways that address Telkom’s
concerns.
[27]
The principal statute under this head is now the Spatial Planning and
Land Use Management Act 16 of 2013 (SPLUMA). It does
indeed address
the concerns raised in counsel’s argument. For example, in
terms of s 52 of SPLUMA land development applications
materially
impacting upon an exclusive functional competence in the national
sphere, must be referred to the Minister of Rural
Development and
Land Reform, and among other powers the Minister may, no doubt in an
extreme case, direct that it should be decided
by him or her.
[20]
In regard to zoning issues Schedule 1 of SPLUMA requires provincial
legislation to establish a uniform set of land use zones to
be used
by municipalities (para
(a)
)
and also to provide a single uniform system for land use and
development, consistent with the provisions, objects, development
principles, norms and standards prescribed in SPLUMA (para
(f)
).
This should allay fears of inconsistent treatment by different
municipalities, especially when it is recognised that all
municipalities
have a shared interest in the provision of adequate
telecommunications services to their residents and businesses and
public agencies
operating in their area of jurisdiction.
[28]
It must be borne in mind that Telkom’s case is not that there
is more than one planning system to which it is accountable
and that
this is hampering its ability to discharge its obligations as a
licensee. Its argument is that it should be unfettered
in determining
where it should be able to erect its telecommunications
infrastructure, including both FBTS and RBTS, save insofar
as its
decisions in that regard may be challenged on the grounds provided
for the review of administrative decisions in PAJA
[21]
or under the principle of legality. This would lead to the curious
result that the construction of major infrastructure that can
be seen
across our country and in many places in our cities, having a
potentially major impact on the environment, would fall outside
any
regulatory control insofar as its location was concerned.
[29]
For all those reasons the primary argument that the City had no
competence to make a by-law dealing, by way of zoning, with
where
telecommunications infrastructure may be erected, must be rejected.
Such a by-law does not involve legislation on telecommunications
matters, but matters of municipal planning. I turn then to the
alternative argument.
The
by-law conflicts with s 22(1)
[30]
Under this head it was accepted that the municipality’s
legislative competence was not restricted by s 22(1) in
the
manner contended for under the first head. Instead it was contended
that the manner in which it had been exercised, by requiring
Telkom
to obtain the City’s consent in certain circumstances to the
erection of telecommunications infrastructure, nonetheless
conflicted
with s 22(1)
(a)
of
the Act and was therefore invalid.
[31]
It is by no means clear that this argument is distinct from the first
argument. The attack on the City’s legislative
competence was
based upon the proposition that the municipal planning competence did
not extend to telecommunications. In its initial
form the argument
posited that this was because the zoning provisions regulated
telecommunications. In its varied form, as advanced
in oral argument,
it was that there was an exception to the ambit of municipal planning
in relation to cross-municipality infrastructural
development,
including telecommunications. Once it is held that neither argument
is correct, the necessary conclusion is that s 22(1)
does not
operate to exclude from the ambit of municipal planning matters
concerning the construction of telecommunications infrastructure.
The
reason is that this is a planning function, not a regulation of
telecommunications. As the attack was addressed to the zoning
provisions legislated for in the exercise of the municipal planning
competence, it would seem to follow that those provisions were
legitimately enacted as part of the by-law in the exercise of a
competence vested in the City. How it can then be said that they
are
nonetheless inconsistent with the powers afforded to licensees under
s 22(1)
(a)
is
unclear.
[32]
Be that as it may, one must then turn to s 22(2) of the Act,
which provides that in taking any action in the exercise
of the
powers vested in licensees under s 22(1) ‘due regard must
be had to applicable law’. A substantially similar
provision
fell to be considered in
Maccsand
.
[22]
There the issue was whether the holder of a mining right in terms of
the MPRDA
[23]
was bound to obtain authorisation from the City of Cape Town to
conduct mining operations in terms of that right by way of a consent
use and a rezoning of certain land on which the mining operations
were to be conducted. The requirement that it obtain such consent
and
rezoning, arose under the City’s zoning scheme established
under provincial legislation referred to as LUPO.
[24]
[33]
As with s 22(1)
(a)
of the Act, the
holder of a mining right was given the right to enter upon property
and act in terms of that right without the consent
of the owner of
the property.
[25]
In terms of s 23(6) of the MPRDA the exercise of the mining
right was subject to ‘any relevant law’. The expression
is similar to that in s 22(2) of the Act, which refers to
‘applicable law’. The first question addressed by the
Constitutional Court was whether LUPO, in terms of which the City
developed and imposed the zoning provisions of its town planning
scheme, was relevant legislation.
[34]
The approach the court took is instructive. This court had held that
the MPRDA and LUPO were directed at different ends and
therefore
there was no duplication of function between the Minister in granting
the mining right and the City in granting consent
to mining.
[26]
The Constitutional Court endorsed this and said that the MPRDA and
LUPO ‘serve different purposes within the competence of
the
sphere charged with responsibility to administer each law’.
[27]
As mining was conducted on land there was an overlap between the
mining legislation and the planning legislation, but:
‘
This overlap does not
constitute an impermissible intrusion by one sphere into the area of
another, because spheres of government
do not operate in sealed
compartments.’
[28]
[35]
The Constitutional Court rejected the argument that the expression
‘any relevant law’ in s 23(6) related only
to laws
governing mining.
[29]
In the case before us it was not suggested that the expression ‘any
applicable law’ was subject to any similar limitation.
Accordingly, it encompasses any law governing actions taken by
licensees, such as Telkom, when acting in terms of powers vested
in
them under s 21(1). That would include laws governing the siting
of telecommunications infrastructure, such as the by-law
with its
zoning provisions.
[36]
The further argument in
Maccsand
that the effect of LUPO was
to permit a local authority to usurp the functions of national
government was rejected in the following
terms:
‘
46. …
This
argument is based on a misinterpretation of the judgment of the
Supreme Court of Appeal. That Court did not find that LUPO
regulates
mining. Instead, it held that the MPRDA and LUPO have different
objects and that each did not purport to serve the purpose
of the
other. The MPRDA’s concern, the Court found, was mining and not
municipal planning, hence it held that the two laws
operate alongside
each other.
Because
LUPO regulates the use of land and not mining, there is no merit in
the assertion that it enables local authorities to usurp
the
functions of national government. All that LUPO requires is that land
must be used for the purpose for which it has been zoned.
47.
Another criticism levelled against the
finding of the Supreme Court of Appeal by Maccsand and the Minister
for Mineral Resources
was that, by endorsing a duplication of
functions, the Court enabled the local sphere to veto decisions of
the national sphere
on a matter that falls within the exclusive
competence of the national sphere. At face value this argument is
attractive but it
lacks substance. The Constitution allocates powers
to three spheres of government in accordance with the functional
vision of what
is appropriate to each sphere. But because these
powers are not contained in hermetically sealed compartments,
sometimes the
exercise of powers by two spheres may result in an
overlap. When this happens, neither sphere is intruding into the
functional
area of another. Each sphere would be exercising power
within its own competence. It is in this context that the
Constitution obliges
these spheres of government to cooperate with
one another in mutual trust and good faith, and to co-ordinate
actions taken with
one another.
48.
The fact that in this case mining cannot
take place until the land in question is appropriately rezoned is
therefore permissible
in our constitutional order.
It
is proper for one sphere of government to take a decision whose
implementation may not take place until consent is granted by
another
sphere, within whose area of jurisdiction the decision is to be
executed.
If consent is,
however, refused it does not mean that the first decision is vetoed.
The authority from whom consent was sought
would have exercised its
power, which does not extend to the power of the other functionary.
This is so in spite of the fact that
the effect of the refusal in
those circumstances would be that the first decision cannot be put
into operation. This difficulty
may be resolved through cooperation
between the two organs of state, failing which, the refusal may be
challenged on review.’(Emphasis
added.)
[37]
Finally an argument that the provisions of the MPRDA and LUPO were in
conflict was rejected on the basis that there was no
conflict between
them. Each was concerned with its own subject matter – mining
in the case of the MPRDA and planning in the
case of LUPO. Relying on
s 23(6) of the MPRDA the Court said that the rights conferred on
the holder of a mining right by
the MPRDA were subject to LUPO.
[30]
[38]
There is no material distinction between the statutory provisions or
the facts in that case and the present one. Counsel sought
to contend
for one on the basis that telecommunications requires national
infrastructure, while mining can only take place in one
spot. The
distinction has no merit. If anything the holder of a mining right is
placed in the more invidious position as a result
of being subject
both to mining legislation and planning legislation, because mining
by its nature is restricted to a specific
place and site, whereas
infrastructure for telecommunications is far more flexible. If one
potentially desirable location for a
base station cannot be used
because of zoning provisions, it will ordinarily be possible to find
another that conforms to zoning
requirements and the network can be
adapted accordingly.
[39]
For those reasons, to the extent that the alternative argument
differs from the main argument, it is in my view without merit.
However, given the reliance that Telkom placed on the sentence from
para 189 of the judgment in
Link Africa
quoted in paragraph 8
above it is necessary to examine what that judgment held.
Link
Africa
[40]
The dispute in this case arose between the City of Tshwane and Link
Africa concerning the latter making use of municipal infrastructure
for the purpose of installing its fibre-optic cabling network. At a
stage in the process Link Africa invoked its rights in terms
of
s 22(1) of the Act to contend that it was entitled to use the
city’s municipal infrastructure to install its cables
without
the consent of the city. Tshwane then brought proceedings for a
declaratory order that its consent was required and in
the
alternative attacked the constitutional validity of ss 22 and 24
of the Act. The Court unanimously rejected the contention
that the
landowner’s consent was required before a licensee could
exercise the rights conferred by s 22(1).
[41]
Insofar as the constitutional challenge was concerned, the majority
judgment characterised the rights given to licensees under
s 22(1)
as a form of public servitude akin to a personal servitude. On that
foundation, and the provisions of s 22(2),
it held that the
common law of servitudes, in particular that they be exercised
civiliter modo
,
applied and that compensation would be payable for any deprivation of
rights. For that reason it held that s 22(1) was not
arbitrary
and did not fall foul of s 25 of the Constitution.
[42]
The portion of the majority judgment on which Telkom relied was paras
185 to 189 dealing with the powers and duties of municipalities.
As
the issues of the meaning of s 22(1) and the question of its
constitutionality had already been disposed of, the precise status
of
these paragraphs is unclear. They do not form part of the
ratio
of the decisions on either of the two
issues decided in the judgment. As such they appear to constitute an
obiter dictum
,
but one to which respect must be paid as emanating from a majority
judgment of our highest court.
[43]
In para 185 the majority said that as far as municipalities are
concerned the ‘applicable law’ referred to in s 22(2)
referred to laws made by the municipalities in the exercise of their
own constitutional competence. It accepted that telecommunications
is
not an area of municipal legislative competence, but then turned to
deal with an ‘illuminating argument’ raised
by the
Msunduzi Municipality that municipalities had rights and powers to
regulate the manner in which licensees exercised the
powers conferred
by national legislation. For that reason Msunduzi argued that the
licensee had to engage with the municipality
before entering upon
public land. Practical considerations of order and safety had to be
taken into account. It contended that
a licensee could not simply
enter a municipality and without warning dig up a busy intersection,
or lay cables on a pedestrian
walk, without consulting the local
authority.
[44]
The majority judgment endorsed this approach with regard to the
powers vested in municipalities under s 151 of the Constitution.
It is against that background that it said in para 189:
‘
These provisions indicate that
licensees, though empowered by national legislation, must abide by
municipal by-laws.
The only limit is
that by-laws may not thwart the purpose of the statue by requiring
the municipality’s consent.
If
by-laws exist that regulate the manner (what counsel called the
“modality”) in which a licensee should exercise
its
powers, the licensee must comply.’ (Emphasis added.)
[45]
As already noted, Telkom seized upon the italicised sentence to argue
that in no circumstances would it be necessary for it
to ask consent
from the municipality to the location of its base stations. I do not
agree and am satisfied that this was not what
was intended by the
majority judgment. Its authors had commenced that paragraph by saying
that licensees must abide by municipal
by-laws. They can hardly have
been unaware that among the most important of these so far as
licensees were concerned were building
regulations and planning
by-laws. The latter are accompanied throughout South Africa by zoning
provisions that regulate what may
be built where. These must
therefore have been among the municipal by-laws with which they said
licenses had to comply.
[46]
In the third sentence the majority said that licensees had to comply
with by-laws regulating the manner in which they exercised
their
powers. One of those powers was the power to enter upon land for the
purpose of erecting infrastructure. The manner in which
that power
could be exercised would to everyone’s knowledge be regulated
by building regulations and planning by-laws, especially
zoning.
Again the majority appear to be endorsing, not excluding, the
application in full measure of municipal planning by-laws.
[47]
So, at both the beginning and the end of this paragraph, the majority
emphasised the need for licensees to comply with by-laws
of which the
obviously relevant would be building regulations and planning by-laws
and their zoning provisions. Such by-laws conventionally
require
municipal consent for many forms of construction. Could they really
have meant that the need for all such consents was
dispensed with in
consequence of the enactment of s 22(1)? Surely not. That would
have been entirely inconsistent with their
accepting the validity of
the point raised by Msunduzi.
[48]
The answer is I think plain from reading the particular sentence as a
whole. Mindful of the fact that planning can sometimes
be used as a
means of obstruction, a warning was inserted in this sentence that in
the context of the power to consent to various
developments and the
construction of various buildings, the ability to grant or withhold
consent should not be used to thwart the
purpose of s 22(1).
That was a significant use of language. According to the Shorter
Oxford English Dictionary
[31]
‘thwart’ when used as a verb means:
‘
1 Run counter to; go against;
oppose, hinder.
2 Oppose (a person or a purpose) successfully; prevent
the accomplishment (of a purpose); foil; frustrate.’
This
is consistent with what was said earlier in the judgment, namely,
that the right a licensee enjoyed under s 22(1) should
not be
‘defeated or eviscerated’.
[32]
[49]
The warning sounded in the majority judgment invoked a
well-established principle of our law that, where a power to regulate
is given, it may not be used to prohibit, either in whole or in
substantial measure the activity in question.
[33]
Given the ordinary meaning of the word ‘thwart’ it is in
my view clear that this was the concern of the majority in
Link
Africa
. An
occasional refusal of a rezoning, or a refusal of consent to the
construction of a particular base station, would not thwart
the
purpose of s 22(1). Nor, as was said in the
Maccsand
case, would it
amount to a veto. The licensee would simply have to find a suitable
alternative location for it. It was not suggested
that this was not
feasible. Such refusal would be nothing more than a proper exercise
of the municipality’s constitutional
right to exercise its
competence of municipal planning in accordance with a by-law properly
adopted.
[50]
There was not the slightest suggestion by Telkom that the City was
thwarting its purpose. Instead, without testing the legitimacy
of
this approach, it went ahead and erected five FBTS in residential
areas without obtaining a rezoning, and two more in areas
where that
was a consent user, but without obtaining consent. This was not a
proper approach.
[51]
My conclusion is that the passage from the majority judgment in
Link
Africa
on which Telkom relied did not support its contentions or
its general approach to the exercise of its rights in terms of
s 22(1).
The
Telecommunication Mast Infrastructure Policy
[52]
This was a policy adopted by the City in 2002, and revised in 2105,
in regard to the provision of base stations. Telkom suggested
that it
was invalid because it was a clear endeavour by the City to regulate
telecommunications and therefore beyond its powers.
Stress was laid
on the objectives set out at the commencement of the policy and
particularly the first three that were:
·
To improve and maintain
communication;
·
To ensure that telecommunication
mast infrastructure was placed in the best possible location;
·
To ensure the co-location or sharing
of telecommunication mast infrastructure wherever possible.
The
remaining objectives related to the visual integrity of the city;
landscaping so as to mitigate the impact of the construction
of such
infrastructure; and protecting the heritage and environment of the
city.
[53]
A reading of the Policy does not suggest that the City was
endeavouring to deal with any aspect of telecommunications
infrastructure
outside its legitimate concerns for the development of
the city, its planning and minimising the impact of such
infrastructure
on the city and its environs. The argument that
improving and maintaining communication was outside the City’s
powers ignored
the constitutional objectives of a municipality in
terms of s 152 of the Constitution. These include the provision
of services
to communities in a sustainable manner and the promotion
of social and economic development. Clearly these include a concern
for
the provision of the best possible telecommunications network to
serve the people and the businesses of the City. Concern for the
visual impact of telecommunications infrastructure in a city renowned
internationally for its natural beauty and as such a haven
for
tourists, domestic and international, underpins many of the
objectives of the policy. The objective of promoting a safe and
healthy environment is another factor.
[54]
Properly and fairly considered the Policy does not affect the realm
of telecommunications, save in the context of matters that
are the
central concern of municipalities in regard to which their
legislative competence is protected by the Constitution. There
is in
my view no merit in the attack on the Policy.
Result
[55]
In the result the appeal is dismissed with costs, such costs to
include those consequent upon the employment of two counsel.
___________________________
M J D WALLIS
JUDGE OF APPEAL
Appearances
For
appellant: M Chaskalson SC (with him K Hofmeyr)
Instructed
by: Hogan Lovells (South Africa) Inc, Johannesburg;
Matsepes
Inc, Bloemfontein
For
respondent: G Budlender SC (with him R Paschke SC)
Instructed
by: Webber Wentzel, Johannesburg;
Symington
& De Kok, Bloemfontein.
[1]
The estate played no role in
the high court and has not participated in this appeal. We were
informed from the bar that Telkom
has indemnified the estate against
any adverse order for costs arising from its involvement in these
proceedings.
[2]
Published under PN206 in
Western Cape Provincial Gazette 7414 of 29 June 2015.
[3]
See
the
definitions of
a
freestanding base station and a rooftop base telecommunication
station
in
s 1 of Chapter 1 of Division 1 in Schedule 3 to the by-law
.
[4]
Du Plessis and Another v
City of Tshwane Metropolitan Municipality and Another
Case
NO 26009/2018 dated 28 March 2019, unreported.
[5]
A base station is a building
for the purpose of the Standards Act.
Mobile
Telephone Networks (Pty) Ltd v Beekmans NO and Others
[2016]
ZASCA 188; 2017 (4) SA 623 (SCA).
[6]
City of Tshwane Metropolitan Municipality v
Link Africa (Pty) Ltd and Others
[2015] ZACC
29
;
2015 (6) SA 440
(CC) (
Link Africa
).
[7]
One colleague’s note
read ‘Building Act’ but it is immaterial whether ‘Act’
or ‘regulations’
was used.
[8]
In regard to the Heathfield
property of the estate it had concluded a lease with the current
occupier, Mr Kalu’s son.
[9]
Link Africa
para
189.
[10]
Constitution s 156(2).
[11]
Wary Holdings (Pty) Ltd v
Stalwo (Pty) Ltd and Another
[2008]
ZACC 12
;
2009 (1) SA 337
(CC) para 131.
[12]
Johannesburg Municipality
v Gauteng Development Tribunal and others
[2009]
ZASCA 106
;
2010 (2) SA 554
(SCA) para 41
(Gauteng
Development Tribunal
(SCA))
.
[13]
The City of Johannesburg Metropolitan
Municipality v Gauteng Development Tribunal and others
[2010] ZACC 11
;
2010 (6) SA 182
(CC) para 57
(Gauteng
Development Tribunal
(CC)).
[14]
Minister of
Local Government, Western Cape v Lagoonbay Lifestyle Estate (Pty)
Ltd and Others
[2013] ZACC 39
;
2014 (1) SA 521
(CC) para 46.
[15]
Gauteng Development
Tribunal
(SCA)
p
ara 36.
[16]
Minister of Local
Government, Environmental Affairs and Development Planning, Western
Cape v habitat Council and Others
[2014]
ZACC 9
;
2014 (4) SA 437
(CC) para 13, fn 19 (
Habitat
Council
).
[17]
Habitat Council
para
23.
[18]
Habitat Council
para
19.
[19]
Habitat Council
para
19 fn 24.
[20]
SPLUMA s 52(5)
(b)
.
[21]
The
Promotion of
Administrative Justice Act 3 of 2000
.
[22]
Maccsand (Pty) Ltd and Another v City of Cape
Town and Others
[2011] ZASCA 141
;
2011 (6)
SA 633
(SCA);
Maccsand v City of Cape Town
and Others
[2012] ZACC 7; 2012 (4) SA 181
(CC).
[23]
Mineral and Petroleum
Resources Development Act 28 of 2002
.
[24]
Land Use Planning Ordinance,
15 of 1985.
[25]
MPRDA s 5(3).
[26]
Maccsand
(SCA) para 34.
[27]
Maccsand
(CC)
para 43.
[28]
Ibid.
[29]
Maccsand
(CC)
para 45.
[30]
Maccsand
(CC)
paras 50 and 51.
[31]
Shorter Oxford English
Dictionary
6 ed
(2007) sv ‘thwart’.
[32]
Link Africa
,
para 126.
[33]
R v Williams
1914
AD 460.