Johannesburg – South Africa’s much delayed digital migration process has been dealt another setback after was granted leave to appeal a ruling earlier this year dismissing its challenge to Communications Minister Faith Muthambi’s digital migration policy.

The free-to-air broadcaster had challenged the policy, in which Muthambi expressly prohibited government-sponsored set-top boxes (STBs) from being enabled to allow for encryption, on the grounds she had exceeded her powers, failed to consult relevant stakeholders and that her decision was irrational in that she had stated her aim with the policy was to give broadcasters the choice of whether to encrypt or not.

The broadcaster contended the effect of the policy was to prevent it from making use of encryption – considered necessary to combat pirating of content – because doing so would cut it off from the recipients of the government’s five million free STBs.

Giving reasons for granting of leave to appeal on Friday, Pretoria High Court Judge Bill Prinsloo said the digital migration process would affect the vast majority of people in the country and was a matter of national importance.

Grounds for appeal involved an interpretation of the minister’s powers in terms of the Electronic Communications Act and “when it comes to the interpretation of a document, such as a statute, there is a reasonable prospect that different courts may come to different conclusions”, Judge Prinsloo said.

Given the importance of digital migration, it was important that guidance from a higher court be obtained on the interpretation of the statutory provisions, he said.

He gave permission for to take the matter to the Supreme Court of Appeal.

For the moment this is unlikely to have any effect on the rollout of STBs as the Universal Service and Access Agency has already placed orders for more than one million – without encryption capability.

However, should ultimately succeed in its appeal it would result in a costly exercise to replace the STBs already made, penalties to be paid to manufacturers who have bought parts for the unencrypted units and a further lengthy delay in the process.

South Africa has agreed with neighbouring countries to a December deadline to roll out STBs in border areas that would be affected by signal interference after it missed the June deadline to complete the migration process.

The Communications Department and were already in talks seeking an amicable solution after the broadcaster sought an urgent interdict to halt the manufacturing of unencrypted STBs, which it put on hold pending an agreement.

Spokesman for Vasili Vass said he was not aware of any progress in these discussions.

Muthambi’s policy also came under attack at the governing ANC’s national general council last month, where she was accused of failing to consult the party on the changes she made to the policy, openly defying a resolution of its national executive committee supporting encryption.

A defiant Muthambi rejected a suggestion from the ANC that the policy might have to be reversed, earning a strong rebuke from Luthuli House.

Her spokesman, Mish Molakeng, said she on Friday had noted the judgment and would study it.

Source: iolNews – Craig Dodds