The Supreme Court of Appeal this week in effect set back South Africa’s efforts to migrate from analogue to digital television signals by four years, a step that affects internet access and international obligations.
But it is Communications Minister Faith Muthambi who is likely to bear the brunt of the consequences, after she was slammed by the court for trying to push through amendments that were “irrational”, “unlawful” and “invalid”.
One political source predicted that Muthambi’s fellow Cabinet ministers would be “pissed off”, having approved a “misguided policy” that, in light of the appeal court judgment, now makes them “look stupid”.
Another source said there was a sense of “blood in the water” and that every move Muthambi makes would be closely scrutinised. “They won’t let any minor infraction pass unnoticed,” said the source. “It’s going to get ugly from here.”
Muthambi has faced open criticism from the ANC, the South African Communist Party and labour federation Cosatu for her approach to the SABC and to digital migration, and has crossed swords with Parliament’s portfolio committee on communications. Despite predictions of her imminent political demise, however, she has emerged unscathed in every instance.
On Tuesday the appeal court delivered a devastating commentary on Muthambi’s conduct during its ruling in favour of broadcaster e.tv.
The free-to-air station has long argued that the government-subsidised set-top conversion boxes that will allow the current analogue television sets to play digital broadcast content should have encryption capabilities.
In theory, such a capability will allow broadcasters to charge for access to their stations, as satellite providers do, and enable other value-added services.
Muthambi’s conduct in opting for a policy predicated on set-top boxes with no ability to decrypt signals suggested she did not understand the full ramifications of her decision, the court said.
“The contradictory positions adopted show, as e.tv points out, considerable confusion, first as to the effect of [Muthambi’s] amendment, and second as to the meaning of the previous policy and proposed amendments to that,” reads the judgment.
“Had the minister consulted interested parties such as the appellants, she might have understood the position better and dispelled confusion.”
The court said Muthambi’s failure to consult industry players, the Independent Communications Authority of South Africa (Icasa) and the Universal Service and Access Agency of South Africa (Usaasa) was unlawful and irrational.
Both statutory bodies have obligations to implement and regulate the digital television migration.
The court found that the Electronic Communications Act binds the minister to a process of consultation before promulgating any amendments to policies.
“It makes no sense for significant policy amendments to be made by the minister with no obligation to consult Icasa, Usaasa or other interested parties,” reads the judgment. “Fairness in procedure, and rationality, are at the heart of the principle of legality.”
The court scrapped amendments to the digital migration policy that were promulgated in 2015, in effect reverting to rules first put forward in 2012. Should the government wish to alter them, it would now have to start a full process of public consultation.
Stakeholders insisted this week that, although Muthambi is now forced to listen to objections during the consultation phase, she could attempt to push through new amendments that are similar to the 2015 changes. But she may find little political backing to do so.
The ANC expressed outrage at the 2015 amendments, which it said were counter to its position on digital migration.
In a statement, the SACP said the ruling alliance must view this week’s judgment as a warning not to allow its government deployees to act contrary to alliance policy positions. The SACP also implied that the policy the Cabinet approved in 2015 was significantly different to the one Muthambi gazetted the same month. Her policy, the party said, had been to the advantage of the publicly listed Naspers.
“The corporate capture of the policy space by Naspers – which has, through its subsidiary MultiChoice [owner of DStv], further colonised the SABC – delayed digital migration again [in the] interests of Naspers’s pay-TV monopoly,” the SACP said.
Muthambi released a statement on the day of the judgment, saying she would study it and “decide how to proceed”. She could decide to appeal to the Constitutional Court.
The same day, Muthambi released another statement to say that she would be in Mpumalanga this week, registering households that qualify for free set-top boxes. The registration process began in April. But the manufacture of the boxes is in limbo too, as the treasury scrutinises the three contracts awarded for their production so far.
An e.tv statement stated that the broadcaster hopes the “clarity provided by the ruling” will result in the “proper” implementation of the migration process from analogue to digital television.
Conditional access at heart of the tussle
Since 2012 there has been a highly contested battle over whether to include conditional access in the set-top boxes that will be used to migrate South Africa’s television services from analogue to digital – known as the digital terrestrial television migration process.
Digital television allows for more channels to be broadcast on spectrum bands than analogue television does.
Because spectrum is a finite resource, this migration process will free up spectrum to be used to deliver many more channels and other services such as wi-fi broadband.
Conditional access is a security system that can be included in a set-top box and used by broadcasters to control access to certain channels with encryption.
For example, if you do not pay your DStv bill, MultiChoice can use the conditional access system in its set-top box to deny you access to its services until you have paid up.
Because broadcast signals cross borders indiscriminately – and old analogue signals can prevent a neighbouring country from fully exploiting radio spectrum for internet access – the migration to digital broadcasting has long been co-ordinated internationally. In 2006, South Africa promised to complete digital migration by June 2015. – Lloyd Gedye