Landowners will not have right to refuse 5G masts

The government is citing legal precedent as the basis for its proposed legislation on 5G technology, which if passed will allow network companies to erect masts on privately-owned land even if the landowner does not want it.

Following the July 22 gazetting of additions to the Electronic Communications Act, many communities are believed to have objected strongly to its key proposal, that will give electronic communications network service licensees the right to enter upon and use public and private land for their electronic communications networks and facilities.

This includes 5G wireless technology, which many believe is untested and potentially harmful.

Asked if landowners will have the right to refuse erection of communications equipment on their land, spokesperson for the Department of Communications and Digital Technologies, Mish Molakeng cited a Constitutional Court judgement in the matter of City of Tshwane Metropolitan Municipality and Link Africa (Pty) Ltd CCT 184/14, where the court found that network licensees may select the premises and access to them for the purposes of constructing their electronic communications network or facilities.

“The proposed access to the property must be determined in consultation with the owner. Proportional compensation is payable in respect of the exercise of the public servitudes. Where disputes arise about the manner of exercising the rights or the extent of the compensation payable, these must be determined by way of dispute resolution.

“The proposed policy is aligned with the Constitutional Court judgement. This means that a landowner cannot refuse erection of communications infrastructure on their land but must be notified, must be consulted about the manner in which the rights are to be exercised, and that compensation is payable in proportion to the disadvantage suffered. If there is no agreement between the landowner and the licensee about the manner of exercising the rights or the extent of the compensation payable, these must be determined by way of dispute resolution.”

Molakeng said it should also be noted that the rights were subject to municipal bylaws such as building regulations, and relevant approval must be obtained, such as wayleave approvals.

The proposal says that the body that will referee disputes is the Independent Communications Authority of South Africa (Icasa).

He said the amendment would not give wireless companies the right to erect masts without having to go through current planning approvals i.e. bypassing municipal bylaws and policy that makes provision for a public consultation process.

“Section 22 of the Electronic Communications Act makes it clear that these rights must be exercised with due regard to applicable law and the environmental policy of the Republic. Paragraph 1.5 of the proposed policy also states that it is subject to local government legislation that therefore includes municipal bylaws such as building regulations.”

Molakeng said the current opposition to 5G masts was misplaced “since the purpose of the proposed policy is to enable rapid deployment of predominantly fibre, to enable fibre to the home and premises. Fibre will however also benefit connection of base stations.”

Asked if the government was satisfied that 5G technology was safe, he said they relied on studies conducted by the International Telecommunication Union (ITU), World Health Organization (WHO) and International Commission on Non-Ionizing Radiation Protection (ICNIRP) studies.

“These studies have emphatically stated that 5G mobile networks do not spread Covid-19. Viruses do not spread on radio waves or on mobile networks.

“South African mobile networks have evolved since the early 90s from 2G to 3G, then 4G and are now moving to 5G. These networks are using pretty much the same spectrum, the difference with 5G is that it will also use spectrum in the bands above 6GHz (millimetre wave),” he concluded.

The closing date for objections is August 20 and may be emailed to rapid@dtps.gov.za.