Muthambi is ‘ir­ra­tional’

Le­gal bat­tle looms af­ter min­is­ter sticks to her guns de­spite Supreme Court of Ap­peal judg­ment on digital mi­gra­tion pol­icy

CityPress - - Business - DEWALD VAN RENSBURG dewald.vrens­burg@city­press.co.za

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 en­cryp­tion­free 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 satel­lite­based DStv ser­vice.

Mul­tiChoice is owned by City Press’ par­ent com­pany, Naspers.

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