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Telkom SA Soc Ltd and another v City of Cape Town

10 May 2018

High Court of the Republic of South Africa, Western Cape Division, Cape Town 

Case no. 10354/2017

Date: 10 May 2018

Judge: Andrews AJ

This matter deals with the alleged conflict between the Electronic Communications Act, 2005 (ECA) and the City of Cape Town’s municipal planning by-law. Telkom intended to construct electronic communications base station infrastructure on property within the jurisdiction of the City of Cape Town. It argued that since “telecommunications” is a national competence, it was not necessary for it comply with the City of Cape Town’s planning by-law, 2015 (published in accordance with the Spatial Planning and Land Use Planning Act, 2013), but only national legislation, in this case, the ECA.

the Court considered the multiple Constitutional Court judgments dealing with the “municipal planning” function in the Constitution of the Republic of South Africa, 1996 (Constitution), including Maccsand Pty Ltd and others v City of Cape Town and others, and found that the City of Cape Town’s municipal planning by-law was indeed applicable. Telkom however argued that if that is so, there is then a conflict between national and municipal legislation, which must be resolved in accordance with the relevant provisions in the Constitution dealing with conflict between national and municipal legislation. It was argued that those provisions provide that the relevant by-law, in so far as it is in conflict with national legislation, must be regarded as being inoperative. That argument was also rejected by the Court. It found that there was no conflict between the ECA and City of Cape Town’s municipal planning by-law. In its finding, it reasoned as follows:

I agree with the [the City of Cape Town]’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 [City of Cape Town]’s zoning requirements do not conflict with Section 22(1) [of the ECA] 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.

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Section 24 of the Constitution of the Republic of South Africa, 1996

Everyone has the right to an environment that is not harmful to their health or well-being; and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

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