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ConCourt rules Communications Minister Khumbudzo Ntshav...

Business Maverick

POLICY BLUNDER

ConCourt rules Communications Minister Ntshavheni’s digital migration deadline was unlawful

Communications Minister Khumbudzo Ntshavheni. (Photo: GCIS)

Minister of Communications Khumbudzo Ntshavheni did not consult telecommunications, broadcasting and civil society players about South Africa’s decision to migrate from analogue to digital broadcasting on 30 June 2022. And because of this, the Constitutional Court has ordered her to begin a new consultation process to determine a fresh date.

South Africa’s migration into the digital age from old-style analogue television broadcasting – which was meant to start in 2008 in line with best global standards but hasn’t been completed 14 years later – faces more delays. 

Communications minister Khumbudzo Ntshavheni, responsible for overseeing South Africa’s broadcasting policy, had agreed to a deadline of 30 June 2022 for the country’s move to digital television broadcasting. 

The switch will allow larger data to be transmitted, improving picture and sound quality for television viewers. By 30 June, traditional analogue signals would be switched off across the country, heralding a new era in broadcasting.

But the Constitutional Court has thwarted Ntshavheni’s analogue switch-off plans, declaring her deadline “unlawful” because she unilaterally decided on it without consulting the broader telecommunications and broadcasting industry. 

The apex court found that the switch-off of analogue television broadcasts in South Africa must be delayed to allow for more consultation.

This introduces new challenges for South Africa’s broadcasting policy, which first embraced the need for the country to move from traditional analogue signals on 8 September 2008. 

At the time, countries such as the US and UK were also preparing for the move to digital broadcasting and have since done so successfully, leaving South Africa in the dust.

From 2008, South Africa drafted and adopted a policy framework for the move to digital broadcasting, but missed all self-imposed deadlines to effect the transition, including 1 November 2011, 17 June 2015 and the end of March 2022. The latter deadline was shifted to 30 June 2022 by the High Court in Pretoria, later accepted by Ntshavheni.

The e.tv challenge 

Broadcasting company e.tv had dragged Ntshavheni to the high court, arguing that the deadline (end of March 2022) set by the government for its migration to digital broadcasting was unrealistic and more time was needed – up to an additional 18 months. 

E.tv maintained that this would give the government enough time to get decoder-like devices, called set-top boxes, into households that relied on analogue terrestrial television transmissions. 

These set-top boxes – provided and subsidised by the government – are crucial for the move to digital broadcasting as they convert traditional/analogue televisions to be able to carry digital signals.

Consumers would face a television blackout and not be able to watch programmes sent via digital signals if the government made the switch to digital broadcasting without rolling out set-top boxes.

But e.tv lost its case in the high court, which ruled that Ntshavheni had the powers to determine the deadline for the switch-off of analogue television broadcasts, even without consulting the broader industry on its timelines. 

E.tv approached the Constitutional Court to appeal against the high court ruling. It was joined in the application by the SOS Coalition and Media Monitoring Africa.

On Tuesday, 28 June, the ConCourt ruled in e.tv’s favour, setting aside Ntshavheni’s win at the high court. 

The top court found that it was “not procedurally rational” for Ntshavheni to set a deadline for the switch-off of analogue television broadcasts without consulting industry players, or without an adequate notice period before the switch-off happens. 

That Ntshavheni didn’t consider the submissions of industry players – who detailed their concerns about the rushed nature of the switch-off and the need to extend the deadline – was unlawful, the court also ruled.  

And so a new date for the move to switch-off analogue signals has to be set once the industry has been widely consulted. 

Ntshavheni’s blunder

It was a blunder on Ntshavheni’s part in incorrectly interpreting her role in the transition to digital television.

During the hearings at the Constitutional Court, Ntshavheni’s lawyers argued that she was not required to consult the broader industry, saying there is “no general requirement” for her to consult with the public or industry players on the “exercise of her executive powers as a matter of the principle of legality”. 

Ntshavheni’s executive decision on the deadline for the switch-off was made in terms of section 85 of the Constitution, the lawyers argued. 

Ntshavheni’s lawyers further argued that the Broadcasting Digital Migration Policy – which informs South Africa’s move to digital television broadcasting – doesn’t state that she should consult affected parties regarding the final analogue switch-off date; instead, she is only obligated to consult with the Cabinet. 

But the Constitutional Court nixed Ntshavheni’s arguments, saying the decision regarding the analogue switch-off date must comply with the Constitution to be lawful. 

“I emphasise, lawfulness demands compliance with the Constitution. It cannot be denied that switching off analogue transmission is an integral part of digital migration; more than being connected to it, it is part of it,” Justice Nonkosi Mhlanta wrote in a unanimous decision. 

“Therefore, digital migration policy discussions must include an opportunity where the affected parties are given notice and afforded an opportunity to make representations on the analogue switch-off date.”

The court was informed by the SOS Coalition and Media Monitoring Africa that the government was lagging behind with the roll-out of set-top boxes in households. 

Both organisations argued that only 40% of qualifying households are registered to receive set-top boxes, leaving at least 2.26 million households – or about 7.5 million people – without access to television when the government presses ahead with the analogue switch-off.  

The move to digital television is also essential for the economy. 

When the analogue switch-off happens, broadcasters such as e.tv are expected to give up the radio frequency spectrum they currently use to transmit analogue signals. Spectrum refers to the radio frequencies or waves on which data and information are transmitted. 

The freed-up and extra spectrum can be used by other businesses such as telecommunications companies to invest money in their networks to launch new technology such as 5G, bringing the promise of faster internet speeds and fewer dropped calls. DM/BM

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  • 14 years! And it’s still not done right! And they consider themselves to be competent? I wonder if they can even blush, or will we get a spin of how wonderful they are when they get this mess right, in 2042, and the delays to be deemed apartheid’s fault. Yet we, your glorious government, prevailed! Hello? Why isn’t anyone watching? Hello? Is there anybody out there?
    It is a total disgrace. No excuses. But nothing new in that is there? After all, Eskom is exactly the same.

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