A group of Durban residents is refusing to give up the fight over 123 MTN cell masts erected across the city four years ago, allegedly without complying with town planning regulations.
The lobby group – Durban Anti-Cell Mast Alliance (DACMA) – is taking on Ethekwini Metro in the High Court, seeking a review of an alleged secret deal between the municipality and MTN, which paved the way for the installation of the cell masts.
DACMA insists the installations were not procedural and are in contravention of the city’s bylaws and national legislation.
The group claims court papers presented in the Durban High Court last Friday revealed the Ethekwini Metro had never undertaken any ‘infrastructure-sharing arrangement’ with MTN, as both city management and MTN previously claimed.
The latest battle against the cellphone masts comes on the back of a Constitutional Court (ConCourt) ruling in June that mobile operators cannot be allowed to install telecommunications stations – cellphone masts – at locations of their choice and without prior approval from local authorities.
In the matter, Telkom approached the ConCourt seeking the interpretation of Section 22 of the Electronic Communications Act. It wanted the court to pronounce whether the exercise of rights it held in terms of the section is subject to compliance with municipal bylaws before exercising those rights.
The court’s decision has far-reaching impact on telcos that previously faced criticism over cellphone masts. Concerns from some quarters ranged from the masts being a distraction, to alleged emission of electromagnetic radiation.
In the current matter before the Durban High Court, DACMA is seeking an interdict to get all the illegal masts taken down.
Niki Moore, spokesperson for DACMA, says: “Here you have a city with a well-established town planning scheme, and you have a massive, multinational, billion-dollar cellular service provider who has entire departments full of legal experts devoted to compiling contracts and agreements and between them they manage to erect several dozen cell masts illegally, worth hundreds of millions of rands, as a result of a ‘misalignment’.
“And then they spend four years denying anything is wrong. And only, when the matter is brought to court, are they compelled to admit the building of all these cell masts was based on a non-existing agreement, without a shred of documentation.”
In response, MTN SA’s executive for corporate affairs, Jacqui O’Sullivan, says: “The project to erect telecommunication infrastructure on camera poles was done in partnership with the Ethekwini Metro’s Disaster Management Department as part of a crime prevention initiative towards the 2010 FIFA World Cup. Both parties were then under the impression that no approval was required where the Ethekwini Metro was dealing with its own infrastructure.”
She adds that MTN has a master lease agreement with the Ethekwini Metro. However, “the Ethekwini Metro Disaster Management Department, which MTN partnered with to erect the camera poles, allowed MTN to erect telecommunications equipment on such poles on the understanding that the municipality does not need permission to erect the poles. It is this arrangement and agreement with the Disaster Management Department which the Ethekwini Metro said could not be concluded.”
However, O’Sullivan notes that once it was highlighted that there was a need for approval, MTN lodged applications for approval of the telecommunications infrastructure.
“MTN can confirm that the partnership with the Ethekwini Municipality to provide mobile network coverage in the area is progressing well and that all necessary processes are being met in order to obtain the approvals and permits for the placement of the required infrastructure. To this end, 45 camera poles have been fully approved by the Ethekwini Land Use Management Department. MTN continues to engage with the municipality regarding the fulfilment of the remaining sites.”
Additionally, she says, MTN has not opposed the current case, “this decision was taken on the basis that in the current papers before the High Court, the applicants are not asking for any decision against MTN.
“Should any such decision be requested in the future, we will then consider opposing the application. However, for now there is nothing to oppose as the applicants only wanted records of the Ethekwini Metro’s decision to allow MTN to erect telecommunications infrastructure on camera poles.”
Timeline of events, according to DACMA:
* In 2008, MTN writes to city management about a potential ‘infrastructure-sharing arrangement’ for the Soccer World Cup. This arrangement never comes to fruition.
* In 2015, head of disaster management Vincent Ngubane writes to MTN, confirming MTN would be exempt from town planning processes, in terms of the now-defunct ‘infrastructure-sharing arrangement’. Shortly after this letter is written, Ngubane is the subject of an investigation into corruption. Ngubane is investigated again in 2018 in an unrelated corruption matter. Nothing ever comes of these investigations.
* In August 2016, leases are drawn up between the city and MTN in which MTN undertakes to build and equip cell towers according to town planning regulations. These leases are never signed. Also, these leases are standard rental agreements and are not ‘infrastructure-sharing arrangements’.
* Also in August 2016, MTN begins excavating and erecting concrete cell masts across Durban without any permissions or processes, or contracts or leases.
* In October 2016, Ngubane reacts to the public outcry and writes another letter to MTN, in which he points out MTN would be required to abide by town planning processes. However, MTN had already erected and activated 123 masts across Durban and is announcing that more will be built in terms of the non-existent ‘infrastructure-sharing arrangement’.
* In August 2017, MTN is notified by the city’s legal department (after being petitioned by DACMA) that it is required to de-activate the antennae on the masts until permissions have been obtained, and to stop building more masts. It does not do so. Construction continues and the completed masts remain active throughout.
* During March 2019, MTN announced it found out belatedly its ‘infrastructure-sharing arrangement’ was ‘misaligned’. It begins the process of applying for permission to build cellular masts. Eleven applications for permission are withdrawn as the siting of the masts is problematic and cannot be retrospectively legitimised.
* At the beginning of 2020, MTN once again applies for permission to legitimise the 11 problematic masts, but again is forced to withdraw the applications. These masts are still operational.
* In October 2020, the city denies before court that it ever undertook an ‘infrastructure-sharing arrangement’ of any nature with MTN.
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