In performing its functions and obligations as an ECNS licensee in terms of the ECA (details of which are set out in paragraphs 19 and 20 of the MTN affidavit), MTN relies on the rights created in terms of section 22(1 ) of the ECA . MTN will be subject to fines (as stipulated in the regulation published in Staatscourant 32431 on 24 July 2009) if it does not comply with its obligations under the ECA.8. Section 22(1) authorizes permit holders to enter public and private lands to carry out that which is provided for in the provisions of the sub-section.
The plain meaning of the text of Article 22(2) suggests that the rights created in terms of Article 22(1) must be exercised with "due regard". From the use of the text. due consideration”, it is clear that Parliament intended the provisions of the section. We submit that the purposive interpretation of the ECA supports the interpretation advocated by MTN as confirmed in the SCA judgment.
It is submitted that the city's interpretation would hinder the very purpose of the ECA and the rapid spread of services across the Republic. The Honorable Acting Court of Appeal Plasket, in a unanimous joint decision in the decision of the SCK, finds the power in Article 22 of the ECA as a public power. Reading into a consent application section 22 of the ECA is hostile to the structure thus created.
On the other hand, if consent is a requirement under section 22 of the ECA, the need for protection in terms of PAJA would be eliminated. If this were not the case, the SCA would not have been able to determine that PAJA was applicable in the exercise of rights within the meaning of Article 22 of the ECA. Article 39(2) of the Constitution requires a court to promote the spirit, intent and purpose of the Bill of Rights when interpreting legislation.
This means that all statutes must be interpreted through the prism of the Bill of Rights. In S v Mamabolo, this Court emphasized the importance of the right to freedom of expression and the ability to exchange information in the context of our new democracy:42. It cannot be said that the regulation of the use of the property in this case is for the public good.
The deployment of electronic networks is fundamental to the public interest, especially in light of the right to freedom of expression. The interpretation for which the City, SMI and Msunduzi Municipality are protesting would lead to the frustration of the aforementioned rights which are created in terms of Article 16 of the Constitution. The interpretation for which MTN argued was in harmony with other provisions of the ECA.
MTN's interpretation of Article 22 of the ECA is in harmony with the provisions contained in, for example, Articles 24 to 29 of the ECA.
OF THE CONSTITUTION
If the deprivation is not arbitrary and in accordance with a law of general application, then there is no violation of section 25, subsection 1, in the constitution. Plasket AJA in a contemporaneous unanimous judgment in the SCA judgment finds the power in Section 22 of the ECA to be a. The municipality claims that before a licensee can exercise his rights under the ECA's section 22, subsection
In support of this, the City relies on the fact that neither article 22 nor article 24 of the ECA mentions it. The city seems to regard Article 22 and Article 24 of the ECA as separate and separate provisions. The city maintains that when exercising rights under Section 22(1) of the ECA, a permit holder is required to comply with its laws, ordinances and regulations.
Insofar as the municipality's claim is limited to such laws, statutes and provisions that relate to the licensee's performance of the authorized actions in accordance with section 22, subsection The City argues that section 217(1) of the Constitution, the Municipal Financial Management Act 56 of 2003 ("MFMA") and the municipal asset. We claim that the constitution's section 217, subsection 1, is not applicable either generally in relation to §§ 22 and 24 of the ECA or specifically in relation to the actual circumstances in the main application.
We say this because Article 217 of the Constitution determines the position in which the state body. We claim that Article 217 of the Constitution and the regulations of the MFMA and MAT apply only to the municipality. It does not deal with the situation provided for in Article 22 or 24 of the ECA where the ECNS licensee exercises these rights.
The municipality is effectively subject to administrative action taken by the ECNS licensee as authorized under section 22. In exercising rights in terms of section 22 or 24 of the ECA, the licensee does not enter into contracts for the supply of goods or services nor is it the owner of land that disposes with his land/property or any rights thereon. Section 217 of the Constitution is no authority for, nor does it support, the contentions of the two municipalities as to the need for the licensee to obtain their consent to exercise the rights created in terms of section 22(1) of the ECA.
The City's attempt to subjugate ECA section 217 of the Constitution, the MFMA and the MAT rules is therefore ultra vires. Although the SCA did not consider the city laws, statutes and regulations to which it referred, the learned judges considered and interpreted sections 22 and 24 of the ECA at para 15, p.