May 31, 2016

SOS and MMA Welcome SCA Judgment on DTT Encryption Saga

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The SOS Coalition (SOS) and Media Monitoring Africa (MMA) heartily welcome the judgment handed down by the Supreme Court of Appeal (SCA), today, in which Judge Harris vindicated our public interest claim that the Minister of Communications acted irrationally and ultra vires in her 2015 Amendment of the Broadcasting Digital Migration (BDM) Policy, 2008.

When SOS and MMA joined e.tv in this matter, we argued that the exclusion of encryption technology from the government-manufactured set-top box decoders (STBs) would have the manifest effect of stymieing competition by ensuring the exclusion of existing and entrant broadcasters wishing to access premium content and participate in both the free-to-air and subscription broadcasting markets. The effect of this on TV viewers in South Africa, particularly the 7 million of the 12 million TV-owning households in South Africa which rely exclusively on free-to-air TV for their information, education and entertainment needs would be denied high-quality television, unlike their wealthier counterparts who have the deep pockets to afford pay-TV services like DStv.

For us, the prospect of government actively deepening inequality in South Africa through the amendment of policy which has the manifest effect of defining the people of South Africa’s access to diverse and relevant information, education and entertainment TV services of a high quality on the basis of affordability could not be allowed to continue unchallenged.

From the outset before this matter became the subject of litigation, delaying South Africa’s migration to digital terrestrial television (DTT) by over three years, we pleaded with the current Minister of Communications and herpredecessors to abide by the sound and forward-looking BDM Policy as it was promulgated in 2008. We implored them to put South Africa first, and include encryption in the government manufactured STBs in order to not only protect government’s investment in the STB manufacture, but also to revitalise South Africa’s broadcasting sector for the benefit of the people of South Africa, as well as to stimulate South Africa’s electronics manufacturing and content creation industries, thereby creating jobs and contributing to combating South Africa’s triple-burden of unemployment, inequality and poverty.

This judgment is not only a victory for e.tv, ourselves and the people of South Africa in respect of the benefits they will derive from government-manufactured STBs outfitted with encryption technology. It is also a victory for our constitutional democracy in how it reinforced two key principles underpinning the rule of law by establishing that:

  1. the Minister’s powers to amend this aspect of the BDM Policy must be drawn from some empowering authority, which they was not as was established by the South Gauteng Division of the High Court in 2012; and
  2. the Minister’s amendment of policy must comply with the rationality test, which she did not in respect of the BDM Policy amendment.

We thank our partners and supporters for supporting us and e.tv in challenging this matter and going the distance in ensuring that the people of South Africa do not only enjoy the full benefits that South Africa’s migration to DTT are set to bring, but also in defending the rule of law in our constitutional democracy.

Issued on behalf of SOS: Support Public Broadcasting and Media Monitoring Africa 

For more information contact:

William Bird

Director: Media Monitoring Africa

082 887 1370

Sekoetlane Jacob Phamodi

Coordinator: SOS Coalition

076 084 8077