The judgment threatens to again throw South Africa’s digital migration programme into disarray.

E.tv has won the latest battle in the long-running war over digital terrestrial television in South Africa, potentially throwing the long-delayed project off-track once again.

The supreme court of appeal on Tuesday found that an amendment in 2015 by communications minister Faith Muthambi to South Africa’s digital migration policy did not follow a process of consultation and was irrational and in breach of the principle of legality.

The court found, too, that the amendment did not achieve its purpose and was thus irrational and invalid. Muthambi purported to bind regulatory authorities and broadcasters and thus acted ultra vires, the court said.

The court set aside the amendment to the policy, throwing the country’s digital migration project, which was originally meant to be completed five years ago, in 2011, into further disarray.

The judgment is particularly critical of Muthambi’s failure to consult with communications regulator Icasa and the Universal Service & Access Agency of South Africa (Usaasa) over the amendment.

“…the failure by minister Muthambi to consult Icasa and Usaasa is even more egregious given their statutory duties. So, too, the failure to consult the appellants (e.tv and others), all of whom had an interest in the policy, was quite simply irrational.”

E.tv was supported in its application by an industry body called Namec as well as Media Monitoring Africa and the SOS Coalition.

E.tv late last year filed an application for leave to appeal a judgment by the high court that went against it in the ongoing battle over whether South Africa’s digital terrestrial television signal will be encrypted or not.

The high court had found that Muthambi’s amendments to the digital migration policy, gazetted in March 2015, would remain in force.

The judgment was a significant victory for both communications minister Faith Muthambi and for DStv parent MultiChoice, which was vehemently opposed to government providing subsidised set-top boxes that use an encryption-based conditional access system.

The pay-TV broadcaster argued, among things, that doing so would amount to unfair competition. E.tv, on the other hand, remains strongly in favour of the use of such a system in the set-top boxes, arguing that it is needed to prevent the “ghettoisation” of free-to-air television in South Africa.

Muthambi’s decision not to require encryption in the set-top boxes was a reversal of an earlier cabinet decision.

The appeal court did not make a determination on the merits or otherwise of using encryption.

It found in favour of e.tv on costs.

E.tv welcomed the judgment. Its chief operating officer, Mark Rosin, said the ruling “allows the possibility of a strong and stable digital terrestrial television platform to South African free-to-air television viewers offering the best local and international content”.

Muthambi’s spokesman, Mish Molakeng, said the minister would issue a statement on the court’s judgment soon.

Source: NewsCentral Media – Duncan Mcleod