The case has its genesis five years ago when Telkom decided to build 135 cellular phone masts and rooftop stations in Cape Town.
The Constitutional Court has refused Telkom leave to appeal against a judgment which held that it had built a mast in contravention of Cape Town's bylaws.The Constitutional Court on Thursday 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.
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. When residents complained, the city responded by imposing an administrative penalty on Telkom and put its application for rezoning on hold pending payment of the penalty.Telkom argued that the city had no power to make the bylaw and that the policy which affected electronic communications fell into the national sphere.
Telkom relied on Section 22 of the Electronic Communications Act, which states that a licensee is permitted to enter any land for purposes of constructing and maintaining an electronic communications network or facility.
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