Outrage has greeted the discovery of cell masts and a cellular tower erected in Durban, South Africa, by telecom giants MTN without permission. The eThekwini municipality is now facing a court challenge over the legality of the structures.

MTN is building new infrastructure across South Africa to catch up with its rival Vodacom. It began its national expansion in Johannesburg in 2014 where, in terms of a “municipal infrastructure arrangement” with City Power, antennae were erected on streetlight poles to create purpose-built masts with minimal effect on the environment.

The City of Johannesburg wanted to increase income by commercialising municipal infrastructure and the agreement with MTN followed the issuing of a tender.

In 2016, MTN concluded a similar agreement in Durban with the head of the disaster management department, Vincent Ngubane, apparently in his personal capacity. MTN insists that the deal is legal and above board, but could not produce any evidence of a process or contract.

The existence of this “arrangement” emerged after residents in several upmarket Durban suburbs noticed the construction of concrete masts on traffic islands and municipal spaces in September 2016.

Alarmed residents sought answers from their councillors, and were told they were CCTV poles that would be fitted with cameras with number-plate recognition facilities.

City spokeswoman Tozi Mthethwa issued a statement reassuring residents that the poles were part of the city’s Integrated Development Programme to create a safer city. “The objective was to reduce crime in various parts of the city as well as to have coverage of parts of the city where high levels of crime have been reported,” she said.

But Mthethwa concealed the fact that the towers were purpose-built cell masts for MTN. After they had been erected, they were fitted with antennae instead of CCTV cameras. All the construction firms said MTN was their client.

Asked to produce municipal planning permission for the masts, not one company was able to do so. Mast providers Tellumat, Atlas Towers and FT Engineering did not respond to requests for comment, or comply with requests to produce proof of municipal permission for the structures.

A site plan photographed by Durban resident Ivor Rixon for a tower that was built by Tellumat opposite his house did not have the required municipal stamp. When he asked why the mast was being built, he received a visit from a metro police official. “He was very threatening and told me that if I got in the way of the tower being built he would arrest both me and my ward councillor.”

The planning and development department says plans for the towers had not been channelled through the municipality and the department had been bypassed on the instruction of Ngubane.

“He told me that if I got in the way of the tower being built he would arrest both me and the councillor

“Builders of masts on traffic islands should have permission from eThekwini’s roads and traffic department. An official at the department says its processes had been bypassed on the instructions of Ngubane. Deputy mayor Fawzia Peer says permission is not necessary for camera poles.

“From the very onset the process of CCTV poles and installation has never needed involvement or approval by the development and planning department but relevant processes for masts in terms of engineering compliance were followed to ensure that the installation is compliant with engineering standards.

“For major masts, Icasa [Independent Communications Authority of SA] regulation determines public consultation but in the case, the city masts are used to transfer wireless network to ensure that there is no downtime or disturbance to camera monitoring. This is the relationship we have which is for the benefit of the city and network providers to ensure continuous monitoring of traffic, crime and the public realm.”

The city refuses to explain why the masts do not have any surveillance cameras.

MTN is using two processes to erect its hundreds of cell antennae in Durban. The “municipal infrastructure sharing agreement” allows the company to erect antennae on existing municipal infrastructure such as light poles and camera towers. This permits MTN to bypass the public participation process.

The erection of new cell masts on private or municipal property requires a long procedure including a public-participation process, as well as the submission and approval of plans. This process is the subject of a court challenge, as it is alleged that these steps have not taken place.

A case pending before the High Court in Durban involves litigation between residents of Unit 10 in Chatsworth and cell mast-construction company Atlas Towers regarding a mast that was erected illegally at a school.

According to court papers filed in March, Atlas Towers was served with a contravention order in November 2016 because it had not received planning permission from the municipality. It was issued with a fine for contravening the National Building Regulations and Building Standards Act. Despite this, Atlas Towers completed the mast and MTN activated it on January 26.

Atlas Towers is a US-based construction company that recently bought 1,400 towers from Cell C and has undertaken to build a further 1,800 towers. It rents the infrastructure to cellphone service providers.

DA councillors in the eThekwini metro council are calling for a probe into the “secret deal” between MTN and Ngubane and why Mthethwa seems to have misled the public about the towers’ purpose.

“The DA cannot recall that any such agreement had come before any standing committee of the council for ratification, nor did any request for permission to enter into such an agreement,” says DA councillor Martin Meyer.

A year ago, Ngubane was named in a fraud investigation involving R50m. It was alleged that he had misused municipal funds, inflated contract costs, failed to comply with supply-chain management policies, created ghost workers and awarded contracts irregularly.

Ngubane refused to answer questions about the MTN deal and MTN referred all queries to the eThekwini municipality.

•Adapted from a Business Day SA report.

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