Court papers expose the ‘infrastructure-sharing arrangement’ between Ethekwini and service provider MTN as fictitious
Papers presented in the Durban High Court on Friday (October 23rd) revealed that the Ethekwini Metro had never undertaken any ‘infrastructure-sharing arrangement’ with cellular service provider MTN, as both city management and MTN had previously claimed.
This ‘infrastructure-sharing arrangement’ had been the basis on which MTN had erected 123 cell masts across Durban during 2016 and 2017 without complying with town planning regulations.
In the Durban High Court, before Judge Johan Ploos van Amstel, counsel for Ethekwini Metro stated that the city had never undertaken such an agreement. Therefore all the cell masts built under this ‘arrangement’ had been irregular.
This admission followed an application brought by residents of the cityand DACMA, asking the courts to set this ‘infrastructure-sharing arrangement’ aside.
Counsel for Ethekwini further recommended that the applicants should rather serve MTN with an interdict to get all the illegal masts taken down.
The court case was the culmination of four years of delaying tactics and cover-ups by both the city and MTN, who eventually admitted that the billion-rand infrastructure roll-out of the 123 cell masts was the result of a ‘misalignment’.
“Just think about this for a minute,” said Niki Moore, spokesperson for the Durban Anti Cell Mast Alliance. “Here you have a city with a well-established town planning scheme. And you have a massive, multi-national, 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 that anything is wrong? And only, when the matter is brought to court, are they compelled to admit that the building of all these cell masts was based on a non-existing agreement, without a shred of documentation?”
“It makes you wonder if you could trust a company such as MTN,” she continued, “that could get their own core business so terminally wrong. Especially if you consider that MTN is dogged by allegations of corruption, fraud, sponsorship of terrorism, tax evasion and regulatory infringements in every single country they operate. Put that together with the notoriously-corrupt Durban city council, and you simply have to wonder what really went on here.”
The matter was heard on Friday and judgment has been reserved.
The documents in the court papers clearly show a timeline that proves MTN’s ‘misalignment’ version to be a lie.
* 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 that MTN would be exempt from town planning processes, in terms of the now-defunct ‘infrastructure-sharing’ arrangement. Shortly after this letter is written, Vincent 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 and having the plans passed. The leases are standard boilerplate rental agreements and are not ‘infrastructure-sharing’ arrangements. Additionally, none of them are signed and no plans are ever submitted to the city’s planning department, or documents submitted to any other city regulatory authority.
* Also in August 2016 MTN begins excavating and erecting concrete cell masts across Durban without any permissions or processes, or even contracts or signed leases in place.
* In October 2016, Vincent Ngubane reacts to the public outcry and writes another letter to MTN, in which he points out that MTN would be required to abide by town planning processes, but that his department will facilitate this. That is a highly irregular promise, as it effectively states that his deparment will cut corners on behalf of MTN. By this time, MTN has 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 they are required to de-activate the antennae on the masts until permissions have been obtained, and to stop building more masts. They do not do so. Construction continues and the completed masts remain active throughout.
* During March 2019 MTN announces that they found out belatedly that their ‘infrastructure-sharing arrangement’ was ‘misaligned’. They begin the process of applying for permission to build cellular masts. In a small act of irony, they attach the permission applications to the very masts that they are asking permission to build. 11 applications for permission are withdrawn as the siting of the masts is so problematic that they 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.
- October 2020, the city denies before court that it ever undertook an ‘infrastructure-sharing arrangement’ of any nature with MTN
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