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By Gareth van Zyl
Johannesburg – Broadcaster e.tv has won a legal battle in Bloemfontein’s Supreme Court of Appeal against government’s decision to not encrypt set-top boxes for digital broadcasts.
The move is set to open up much-needed frequencies for faster mobile broadband services as well as help the SABC to switch on more digital television channels.
To aid the digital migration process then, government is set to distribute up to five million subsidised set-top boxes to poorer households.
However, a dispute emerged when Communications Minister Faith Muthambi altered South Africa’s digital broadcast migration policy so as not to encrypt these subsidised boxes.
Subsequently, e.tv in June last year turned to the North Gauteng High Court to challenge the decision on the ground that a lack of encryption could mean that “non-compliant STBs” would receive digital broadcasts and that e.tv would be unlikely to provide high definition broadcasts.
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The court, at the time, then ruled against e.tv with Judge WRC Prinsloo saying that Muthambi understood the effect of the encryption amendment. The same court then granted e.tv leave to appeal the decision in November last year.
And the Supreme Court of Appeal on Tuesday has ruled that e.tv’s appeal of the matter is upheld with the costs of two counsel and that a clause of the digital migration policy is declared unlawful and invalid.
“By precluding the subsidised ST boxes from having encryption capability the minister has made it impossible for e.tv and other broadcasters to broacast encrypted signals to television viewers who have subsidised ST boxes,” wrote Judge of Appeal CH Lewis in the judgment.
“This may place e.tv in breach of its licence conditions. It is not possible for e.tv – or anybody else – to fit these ST boxes with encryption capability after manufacture.
“It would be required (for e.tv) to manufacture additional ST boxes for the five million households that cannot afford them and distribute them at no charge. It (e.tv) cannot do that. The cost would exceed two years of its revenue, some R3bn,” said Judge Lewis.
The Supreme Court of Appeal further found that Minister Muthambi’s failure to consult with parties such as e.tv, and the Independent Communications Authority of South Africa (Icasa) about the amended policy was irrational and in breach of the principle of legality.
Icasa, the SABC, the Electronic Media Network (M-Net), the state-owned Universal Service and Access Agency of South Africa (Usaasa) and Muthambi were all among respondents in the appeal bid by e.tv.
The Supreme Court of Appeal also found that Muthambi acted beyond her legal authority in making the amendment.
Responding to the judgment, e.tv said the court’s decision would help ensure a proper approach to digital migration in South Africa.
“We are committed to the DTT (digital terrestrial television) platform, but want it to happen in an inclusive and organised manner,” said Mark Rosin, chief operating officer of e.tv, in a statement.
“This ruling allows the possibility of a strong and stable DTT platform to South African free-to-air television viewers offering the best local and international content,” said Rosin.
Muthambi’s office also responded to Tuesday’s court judgment.
“The Supreme Court of Appeal has not ordered the reversal of the broadcasting digital migration policy or interdicted the implementation of this key national project,” Mish Molakeng, spokesperson for the ministry, told Fin24 in an emailed statement.
“DTT has the potential to radically transform the value chain of the broadcasting and telecommunications systems, thereby creating a new industry trajectory that will assist in addressing the triple challenge of poverty, unemployment and inequality.
“Noting this judgement, on Friday June 3, Minister Muthambi will be in Kwaggafontein in Mpumalanga driving registration for set-top-boxes for qualifying television owning households,” added Molakeng. – Fin24
e.tv media release
e.tv welcomes the ruling by the Supreme Court of Appeal (SCA) setting aside the provision in the Broadcasting Digital Migration Policy which provided that Government subsidized set-top boxes would not have the capability to encrypt broadcast signals.
e.tv hopes that the clarity provided by the ruling will aid in providing a proper approach to the implementation of the Digital Terrestrial Television (DTT) migration in South Africa.
The Supreme Court of Appeal upheld all three grounds of appeal relied on by e.tv.
The court found that Minister Muthambi’s failure to consult with e.tv, ICASA and USAASA and other interested parties, such as SOS Public Broadcasting Coalition, rendered the process of enacting the amendment irrational.
The Court also found the amendment to be in breach of the principle of legality.
The SCA also found that the Minister was not empowered to issue such a binding direction, and she acted beyond her legal authority.
Mark Rosin, chief operating officer of e.tv, reiterates the channel’s stance on digital migration, “We are committed to the DTT platform, but want it to happen in an inclusive and organized manner. This ruling allows the possibility of a strong and stable DTT platform to South African free-to-air television viewers offering the best local and international content.”
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