Victory over MTN after 7 years before the mast
● It seems that if you blow your stack about a fake chimney in a posh Cape Town suburb, you can smoke out a cellphone giant.
Constantia residents were in a celebratory mood this week after the Constitutional Court ordered MTN to remove a 5m cellphone mast disguised as a chimney and described as “visually intrusive”.
But the victory did not come cheap, costing the residents about R2.5m — some of which they will get back thanks to a costs award — and taking seven years.
MTN asked the residents in 2012 for permission to upgrade its 2G antenna to 3G, but it turned out the new mast had not been authorised by the City of Cape Town.
The residents said MTN had duped them into giving the mast the go-ahead. They sued MTN and landowner Alphen Farm Estate after the mast was erected in 2013.
Vincent Murphy led neighbouring sectional title owners to the high court in Cape Town in 2015 and won an order that the mast on top of the Alphen Hotel’s Mill Range building be removed.
Murphy described it as “more extensive and visually intrusive” than residents had agreed to.
MTN took the judgment on appeal to the Supreme Court of Appeal, which overturned it, but the residents took the fight to the Constitutional Court, which handed them victory on Wednesday.
Murphy was ecstatic but said the litigation had been costly. “I ran it, obviously I put more time in and effort than anybody else, but everybody contributed to the costs,” he said.
“You can’t have multinationals acting completely regardless of the rules and regulations. They didn’t apply for the planning permission that was needed. They just went ahead and did what they wanted, which was totally illegal.
“It is hard to say if it had any effect on the value of the properties. There was sort of anecdotal information that it might have, but I have nothing concrete to say it had a detrimental effect.”
He said the case was not “related to any health issue” but “the legality of the mast”. Murphy said although the litigation was worth it, he would not do it again. “It’s a lot of money and the law is always uncertain and it took quite a lot of stress, worry and concern along the way. I don’t think I want to go through all that again.”