5 August 2020
Minister of Communications and Digital Technologies Stella Ndabeni-Abrahams' proposal for the deployment of 5G makes room for extensive infringement on South African property owners' rights. Although it is crucial for South Africa to join developed nations in the Fourth Industrial Revolution if we are to get out of the economic rut that we currently find ourselves in, the Free Market Foundation (FMF) believes this should be done within the framework of the Constitution and the Rule of Law.
The proposal effectively aims to give electronic communications network service licensees (ECNSLs) the power to overrule private property owners' right to determine who may enter their property, by giving ECNSLs "the right to enter upon and use public and private land for the deployment of electronic communications networks and facilities" and entitling them 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."
FMF legal and economic analyst, Jacques Jonker said, "This is extremely worrying, considering the threats already posed to private property rights in South Africa by the proposed amendment of section 25 of the Constitution."
The situation is also exacerbated by Minister Ndabeni-Abrahams' insistence that property owners may not charge ECNSLs fees to build on their property, except under very specific circumstances.
Ownership comes with concomitant use rights. The Minister's proposal not only limits use rights but, in this case, entirely suspends it with respect to owner's right to refuse telecommunication companies' access rights to their property.
If government wants to advance the deployment of 5G and general telecommunications infrastructure, it should rather cut the plethora of red tape that acts as entry barriers to the market, as well as auction off much-needed spectrum.