Telkom SA SOC Limited v City of Cape Town and Another

Telkom SA SOC Limited, a state-owned and licensed electronic communications network service provider under the Electronic Communications Act 36 of 2005 (ECA), sought to roll out telecommunications infrastructure in Cape Town. In 2015–2016 it erected a cellular mast on a privately owned property in Heathfield, Cape Town, pursuant to a lease with the property owner. The property was zoned Single Residential Zone 1 under City of Cape Town bylaws, which did not permit cellular masts. Although Telkom applied for rezoning, it constructed the mast before approval was granted. The City imposed an administrative penalty and placed the rezoning application on hold. Telkom challenged the validity of the City’s zoning bylaw and policy, arguing that they were beyond municipal competence and conflicted with section 22 of the ECA. The City counter-applied for a declaration that the mast was unlawfully constructed in breach of the National Building Regulations and Building Standards Act 103 of 1977.

Leave to appeal was refused, and Telkom SA SOC Limited was ordered to pay the costs of the application, including the costs of two counsel.

This case affirms the constitutional authority of municipalities to enforce zoning and land-use bylaws against national telecommunications licensees. It clarifies that section 22 of the Electronic Communications Act does not exempt licensees from complying with municipal planning laws and reinforces the principle that overlapping functional competences must be exercised cooperatively rather than hierarchically. The judgment strengthens municipal autonomy in land-use regulation and confirms the continued application of the Maccsand approach to conflicts between legislation.