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

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.

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

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).

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

7 One colleague’s note read ‘Building Act’ but it is immaterial whether ‘Act’ or ‘regulations’ was used.

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 owner8 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.

8 In regard to the Heathfield property of the estate it had concluded a lease with the current occupier,
Mr Kalu’s son.

[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.

9 Link Africa para 189.

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,

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)).

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

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.

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 Court16 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

15 Gauteng Development Tribunal (SCA) para 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).

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

17 Habitat Council para 23.
18 Habitat Council para 19.
19 Habitat Council para 19 fn 24.

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
PAJA21 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.

20 SPLUMA s 52(5)(b).
21 The Promotion of Administrative Justice Act 3 of 2000.

[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
MPRDA23 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

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).

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.

26 Maccsand (SCA) para 34.
27 Maccsand (CC) para 43.
28 Ibid.
29 Maccsand (CC) para 45.

[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

30 Maccsand (CC) paras 50 and 51.

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 Dictionary31
‘thwart’ when used as a verb means:
‘1
Run counter to; go against; oppose, hinder.
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

31 Shorter Oxford English Dictionary 6 ed (2007) sv ‘thwart’.
32 Link Africa, para 126.
33 R v Williams 1914 AD 460.

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.