Policy allows 5G towers to be installed on private property

5G will change our lives, as the fifth generation of cell phone technology catapults South Africa into the Fourth Industrial Revolution. With faster connectivity and more bandwidth enabling Augmented Reality, self-driving cars, the Internet of Things, and mobile data connections at unimaginable speeds, 5G is amazing. A whacking great 5G tower erected on your property without your permission? Not so amazing.

Policy places 5G towers on private land

Yet that’s what a new government policy on the deployment of communications networks, gazetted in July 2020 by the Minister of Communications and Digital Technology, is proposing. The policy would give mobile network licensees the right to select, enter, and use public or private land for the deployment of their infrastructure. Properties like residential estates would be prime locations for 5G towers, as they would cover many households.

Much of the public dissent against the policy has been channelled through Dear South Africa, which collects online submissions to challenge or co-form government policies before they become law. Within a month, the opposition to this particular policy had about 65,000 signatures.

The main issue is the proposal that network operators are ‘entitled to select appropriate land and gain access to such land for the purposes of constructing, maintaining, altering or removing their electronic communications networks or facilities’.

According to the policy, property owners may not charge access fees to the network provider for a facility that is ‘not intrusive, such as buried or overhead cabling, that does not constitute a cost to the property owner, or deprive the property owner of its own use of the land.’ You can, however, charge a ‘reasonable access fee’ if they erect a mast on your property. But if those cables or that mast were to be damaged ‘due to the fault of a property owner’, you’d have to pay ‘reasonable compensation’ to the service provider.

It’s important to point out that 5G towers aren’t like ‘normal’ cell phone towers. 5G operates at a much higher frequency than previous generations (like 3G or 4G), so the towers have to be placed about 500 metres apart. Some estates could find several of these towers installed on their property.

Network providers like MTN have been at pains to point out that the policy is still in the draft phase. But drafts very quickly become law if they go unopposed. That’s where organisations like Dear South Africa come in.

Constitutional case against the policy

‘The major problem with the policy is that it’s in conflict with several clauses in the Constitution of South Africa, which revolve around property rights and access to property and so on,’ said Dear South Africa’s managing director Rob Hutchinson in an interview with Estate Living. ‘It’s also in conflict with several local by-laws of different municipal regions – and that will have to be fought out between inter-governmental departments.’

Dear South Africa’s response cites Section 25(1) of the Constitution: ‘No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property’, and (in echoes of Section 36) suggests ‘that the proposed policy be amended to rather use existing less restrictive means to achieve (its) goals’.

Depending on which corners of the internet you visit, there are also health concerns about 5G towers. These range from fears around the effects of radiofrequency radiation to bonkers conspiracy theories about 5G causing COVID-19.

‘A lot of people will moan about the health issues, going into the scientific reasons behind them, but that is a long shot,’ says Hutchinson. ‘There’s a lot of evidence supporting it, and a lot of contradictory evidence as well. The best way to challenge this policy would be on constitutional grounds, where there’s a far stronger case.’

As 5G technology rolls out across the world, property owners in South Africa – including HOAs and estate developers – might find themselves fighting that case sooner than they think.