Subscription channel M-Net was in favour of Communications Minister Faith Muthambi’s amendment to the Broadcasting Digital Migration Policy in fear of competition, Etv told the Constitutional Court on Tuesday.
Advocate Steven Budlender, for Etv, said that setting aside the amendment would deprive South Africans who could not afford DStv from affordable, quality viewing.
“South Africa is at the point where there can be real competition which is why M-Net was against the matter,” he said.
Budlender argued that Muthambi provided no evidence that she had consulted with the Independent Communications Authority of South Africa (Icasa) and the Universal Service and Access Agency of South Africa (USAASA).
“Icasa and USAASA do not start on a clean scale because they must consider the minister’s policy.”
Budlender said it was not good enough for the Muthambi to simply say she consulted with stakeholders.
“An affidavit was needed from Icasa and USAASA stating that there was a consultation between them and the minister.”
He said that the only way that the digital migration could proceed was if the court ruled on lawful consultation between all parties affected by the policy.
Earlier, Budlender argued that there was never a bar against encryption previously and that it was clear that the government felt the amended policy would be implemented.
“The minister admitted that it was a government policy that the government would not pay for encryption.”
He added that government policies were meant to be followed and that if they waited for the policy to be implemented, eTV would be challenged with the question of why they waited and did not challenge the minister’s decision.
Chief Justice Mogoeng Mogoeng asked why Etv wanted to ride on the back of government.
“Why should government help you make money,” Mogoeng asked.
Budlender said that the public deserved quality programming.
“If the minister had said I don’t like encryption because of its disadvantages, Etv would live with it, but the minister has said she doesn’t mind encryption as long as she doesn’t pay for it,” he said.
He said that they would pay for the differential costs but they were not asked and given that option.
“The process is about the public not just Etv.”
Budlender said that rolling out their own set-top boxes to about five million viewers, would cost them billions of rands.
Later Max du Plessis, for the Support Public Broadcasting Coalition (SOS) and the Media Monitoring Africa (MMA), said his clients were present purely for public interest and that they recognised the competition dynamics which was probably the reason why Mnet and SABC agreed with not encrypting.
He emphasised that Etv mentioned that had they known that the minister’s concern was paying for the boxes, they would’ve paid for it themselves.
“SABC for R500 million, agreed that it would not encrypt channels once digital migration happened.”
Advocate Wim Trengove SC told the Constitutional Court that a decision on the amended set-top box (STB) policy was unnecessary, as it would have no legal binding effect.
Trengove, who is acting for Communications Minister Faith Muthambi, was quizzed by Mogoeng and other judges on the bench about his client’s decision to amend the Broadcast Digital Migration Policy, which now states that subsidised set-top boxes should not have decryption capabilities.
Following the minister’s amendment in 2015, Etv brought an application to the high court to review the minister’s decision and argued that she did not have the power to do so because necessary consultations had not taken place.
However, the Etv application was dismissed with costs.
South Africa is set to undergo a digital migration process to transition broadcast television signals from analogue to digital.
In 2015, Muthambi published an amendment that included a clause in the Broadcast Digital Migration Policy, stating that the subsidised set-top boxes shall not have the capability to decipher encrypted broadcast signals.
On Tuesday, Trengove told the Constitutional Court that the amendment was not reviewable, as it had no binding legal effect.
“It will never have any effect, and if it does, the Independent Communications Authority of South Africa (Icasa) and the Universal Service and Access Agency of South Africa (USAASA) will have to consider the matter,” Trengrove said.
“Etv has no legal interest in the amendment, but Icasa might. They have a commercial interest in the implementation, and it’s not clear what the commercial interest is.”
Mogoeng asked Trengove about the rationality of the policy and whether there was room for it to be challenged.
Trengove said the policy merely provided guidance to the executives on the transition from analogue to digital TV and that it was not binding on anybody.
“Why should it be reviewed if it’s not binding. What is the point of reviewing a policy that may not have effect?” asked Trengove.
“The right to seek the review is limited to those who should be consulted or someone else can’t come to court and argue the policy,” said Judge Christopher Jafta.
“Indeed,” Trengove responded.
“Why not save Icasa and USAASA from being influenced by a policy that may be irrational and not be up to them to challenge. Why leave me without guidance and policy?” asked Mogoeng.
Trengove said Icasa as a regulator was allowed to deem the policy unlawful.
The matter continues.
– African News Agency