Mobile telephone Networks (Pty) Ltd v Beekmans NO and Others (1139/2015) [2016] ZASCA 188; 2017 (4) SA 623 (SCA) (1 December 2016)

Mobile telephone Networks (Pty) Ltd v Beekmans NO and Others (1139/2015) [2016] ZASCA 188; 2017 (4) SA 623 (SCA) (1 December 2016)

The Supreme Court of Appeal held that the determination of whether a building is temporary must be made by objective assessment of its nature and purpose, not merely by the owner's declaration or the specification of a limited period. The base station and mast erected by MTN were, by their physical characteristics and intended use, permanent structures designed to serve ongoing telecommunications needs. The regulatory exception for temporary buildings was not intended to apply to such structures, and the City of Cape Town materially erred in approving the building plans as temporary. The approval process bypassed the strict requirements of the National Building Regulations and Building...

Citation
[2016] ZASCA 188
Parties
Appellant: Mobile Telephone Networks (Pty) Ltd; Respondent: Carl Henricus Beekmans NO; Respondent: Stephen Marshall NO; Respondent: Timothy Lister Maughan NO; Respondent: City of Cape Town
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 December 2016
Case Number
1139/2015
Procedural Posture
Civil Appeal / Appeal From Western Cape Division of the High Court, Cape Town
Outcome
Appeal dismissed with costs, including the costs of two counsel.
Judges
Leach, Petse, Dambuza, Mathopo, Van der Merwe
Legal Topics
Building Regulations, Temporary Structures, Review of Administrative Action, Land Use Departure, Approval of Building Plans
Administrative Law Land and Property Civil Procedure Building Regulations Temporary Structures Review of Administrative Action Land Use Departure Approval of Building Plans

Case Brief

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Parties

Mobile Telephone Networks (Pty) Ltd

Appellant

Carl Henricus Beekmans NO

Respondent

Stephen Marshall NO

Respondent

Timothy Lister Maughan NO

Respondent

City of Cape Town

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape Division of the High Court, Cape Town

Legal Issues

  1. 1 Whether the cellular communications base station and mast qualified as a temporary building under the National Building Regulations.
  2. 2 Whether the City of Cape Town lawfully approved the building plans for the base station as a temporary structure.
  3. 3 Whether the approval process complied with the requirements of the National Building Regulations and Building Standards Act.

Ratio Decidendi

The Supreme Court of Appeal held that the determination of whether a building is temporary must be made by objective assessment of its nature and purpose, not merely by the owner's declaration or the specification of a limited period. The base station and mast erected by MTN were, by their physical characteristics and intended use, permanent structures designed to serve ongoing telecommunications needs. The regulatory exception for temporary buildings was not intended to apply to such structures, and the City of Cape Town materially erred in approving the building plans as temporary. The approval process bypassed the strict requirements of the National Building Regulations and Building...

Court Disposition

Appeal dismissed with costs, including the costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.