Mines, malls and cellphone masts: how the Constitutional Court confirms the need for municipal approval and government doesn’t seem to want to listen?

Facts and arguments of the case
Telkom had erected a cellphone mast in the City of Cape Town before the required rezoning had been approved. The City imposed an administrative fine on the basis of its by-laws and the National Building Regulations and Building Standards Act 103 of 1977, which required the City’s consent for the building of cellphone masts.

Telkom took issue with this, and argued that the City had exceeded its constitutional powers by adopting a by-law that regulates telecommunications. This is a matter of national competence, so Telkom argued. Indeed, telecommunications is not listed in Schedules 4 or 5 of the Constitution, which makes it a national competence.

Telkom accepted the City’s constitutional power over municipal planning (listed in Schedule 4, Part B), but argued that telecommunications infrastructure extends beyond the boundaries of municipalities and that it ought not to be subjected to any requirement for municipal approvals.

Judgment
In the Supreme Court of Appeal, this argument was rejected. The Constitutional Court confirmed the Supreme Court of Appeal’s rejection.

Telkom’s argument would mean, so the Court argued, that municipalities have no planning authority over an activity that is carried out under a national or provincial mandate. The Court gave examples of infrastructure projects related to bulk water infrastructure, education facilities, casinos, and even housing as these are all functional areas under national and/or provincial competence. Could all these activities proceed without regard to the municipality’s land use management and building regulations? This is clearly untenable.

The Court thus continued the trend in its judgments, determined in Maccsands and Habitat that a municipality’s competence with regard to zoning and subdivision is not displaced when the development in question serves a national or provincial purpose, or when it concerns ‘network infrastructure’ that crosses municipal boundaries.

Section 156(3) of the Constitution provides that by-laws may not be inconsistent with national or provincial legislation. The Court assessed whether there was any inconsistency between the City of Cape Town’s by-laws and section 22 of the ECA, which entitles Telkom to enter land for purposes of constructing and maintaining an electronic communications network or facility.

The Court determined that there was no real conflict. The two laws can both be applied. The ECA in any event provides that Telkom must exercise those rights subject to compliance with applicable laws. The solution lies in municipalities and Telkom engaging in cooperative governance, not in one organ of state trumping the other’s authority.

Comment
This judgment forms part of a series of judgments, in which the Constitutional Court protected municipalities from a national or provincial department or agency seeking to override municipal planning and building regulations decisions. The first was the land mark judgment in Gauteng Development Tribunal, which put fire under national government’s efforts to pass the Spatial Planning and Land Use Management Act 16 of 2013. Ever since that judgment, there have been seven more, in which questions were raised about the scope of municipal planning powers. In all eight judgments, the Constitutional Court came down on the side of local government. Below, they are listed below for ease of reference, together with the main legal question the Court had to answer.

There are two important considerations to make. First, the above overview shows that there is insufficient regard on the part of national and provincial governments and state-owned entities for the constitutional authority of municipalities, particularly with respect to municipal planning and building regulations. It does not speak well of the national and provincial governments’ appreciation, and perhaps understanding, of the constitutional provisions on local government, if the Constitutional Court continuously has to be called upon to rule on the same constitutional issue. In short, it is becoming embarrassing.

Secondly, while the champions of local government autonomy may celebrate the ‘vindication’ of municipal authority, it does present challenges for the coherence of government infrastructure programmes. National and provincial infrastructure projects are crucial for South Africa and it is not good if these are stymied by delays and regulatory confusion. The answer lies in better cooperative government. National and provincial government departments and state-owned entities must ensure that their infrastructure plans are located in municipal Integrated Development Plans, Municipal Spatial Development Frameworks and other infrastructure planning and financing instruments. The District Development Model also represents an important initiative aimed at improving coherent infrastructure planning.

National and provincial governments and state-owned entities must partner with municipalities in improving the intergovernmental dimension of these planning instruments, instead of seeking to find space in the law to override municipal decisions. This is not a one-way street: municipalities must of course play their part and partner with national and provincial governments and state-owned entities to improve infrastructure for their communities.

By Jaap de Visser