The Constitutional Court has refused Telkom leave to appeal against a judgment which held that whenever it wanted to erect a mast on any property, municipal bylaws must be complied with, notes TimesLIVE.

The case has its genesis five years ago when Telkom decided to build 135 cellular phone masts and rooftop stations in Cape Town. It identified a property in Heathfield that belonged to the estate of Birch Kalu.

However, under city bylaws, the property was zoned as single residential zone 1, 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. Two weeks later, Telkom went ahead and built the mast even though it had not received city approval for rezoning.

The city responded by imposing an administrative penalty on Telkom and put its application for rezoning on hold pending payment of the penalty.

Telkom then approached the Western Cape High Court to challenge the validity of the bylaw, arguing that the city had no power to make the bylaw and that the policy which affected electronic communications fell into the national sphere.

However, the High Court ruled in favour of the city and Telkom approached the SCA, which dismissed its appeal with costs in September 2019.

In the Constitutional Court, Telkom argued that the city had no legislative power to regulate telecommunications.

The Constitutional Court, in its judgment, said the matter concerned the question whether the exercise of rights held in terms of the Electronic Communications Act is subject to compliance with municipal bylaws and policies.

‘Differently put, whether a holder of those rights must comply with municipal bylaws before exercising those rights,’ the court said, according to TimesLIVE.

In a unanimous judgment by Justice Chris Jafta, the court said it was not persuaded that the SCA was wrong to dismiss the appeal.

‘The judgment of that court is unassailable and as a result, the granting of leave here would serve no purpose. This means that leave must be refused as it is not in the interests of justice to grant it.’

Full TimesLIVE report

Judgment