Legal battle looms after minister sticks to her guns despite Supreme Court of Appeal judgment on digital migration policy
Communications Minister Faith Muthambi is heading straight for another legal battle after apparently declaring her intention to ignore this week’s devastating Supreme Court of Appeal judgment against her.
The court found her amendment to the Broadcasting Digital Migration Policy last year – to exclude encryption technology from government-sponsored television set-top boxes – “irrational and unlawful”, and set it aside.
However, Muthambi replied with a statement claiming that all the court really did was “clarify a technicality which was embedded in the 2015 amended policy”.
She could go ahead with the planned roll-out of 5 million boxes without encryption, her statement suggested.
The groups that had taken her to court were flummoxed this week and are already threatening to lay contempt of court charges if Muthambi sticks to her guns.
Her statement reiterated her stance that broadcasters could encrypt their signals if they wanted to, but that they would then in effect need to replicate the roll-out of millions of boxes to all homes.
Judge Carole Lewis specifically called out this “illusory” freedom, saying that the cost to new entrants was prohibitive. It is also illogical to have every broadcaster distribute a separate box network to everyone.
The judgment also criticised Muthambi’s failure to consult with stakeholders before making her far-reaching change to the policy last year.
The minister had “issued an edict”, said Lewis.
“The failure to consult the appellants, all of whom had an interest in the policy, was quite simply irrational.”
But the minister’s statement simply asserts that all the previous versions, before her amendment, “enjoyed industry-wide deliberations”.
Her argument seems to be that she can still exclude encryption without her amendment – a completely contradictory reading of the older policy compared with how the court interpreted it.
The judgment did not “translate into government having to acquire the systems to encrypt the signal”, said Muthambi.
While that was true, the judgment did strike down her amendment to exclude encryption, said Sekoetlane Phamodi, coordinator of the SOS Support Public Broadcasting Coalition.
SOS was an applicant in the case, alongside e.tv, Media Monitoring Africa and a faction of the National Association of Manufacturers in Electronic Components (Namec).
If Muthambi went ahead with an encryption-free box roll-out, SOS would seek an interdict, Phamodi told City Press.
It may have to resort to a criminal complaint against her for contempt of court, he said.
A “minimum interpretation” of the judgment would be that Muthambi’s amendment fell away and the previous version that called for encryption remained in effect, said Phamodi.
Adil Nchabeleng, secretary-general of Namec, called the minister’s statement “reckless”.
However, he added: “We can’t pre-empt the outcome. It could just have been a premature statement.
“If she implements this willy-nilly, she will be in contempt of court ... She will be a rogue minister,” he said.
“She has no idea about the digital economy ... She is making emotional decisions. We are tired of ministers acting like they are the law ... This was a judgment backed by a full Bench of the Supreme Court.”
William Bird, executive director of Media Monitoring Africa, said it was “really disappointing” that Muthambi responded the way she did.
“I know they are trying to put a positive spin on things, but they are undermining the integrity of the courts,” he told City Press.
“Her argument is that this has no material impact on what they are doing. If that is the case, why fight us in court ... Why even amend the policy to begin with? You can’t expect people to believe you.”
The effect of Muthambi’s policy would be to force any other broadcaster that wants to offer subscription services to replicate the set-top box network themselves, leading to massive duplicate capital expenditures that the industry could technically have shared.
The main appellant in the case, e.tv, did not comment by the time of going to press.
MultiChoice subsidiary M-Net supported the minister in the case and has already started rolling out its new digital terrestrial television boxes under the brand GOtv. This encrypted service will eventually replace the encrypted analogue M-Net channel and is separate from the satellite-based DStv service.
MultiChoice is owned by City Press’ parent company, Naspers.