Let arms of state be separate – Mogoeng
ConCourt rules in Muthambi’s favour
Chief Justice Mogoeng Mogoeng has warned the three arms of state not to intrude in each other’s constitutionally assigned operational space.
This, Mogoeng said, while delivering judgment yesterday in the legal battle over decryption in set top boxes brought to the Constitutional Court by MNet, SABC and former communications minister Faith Muthambi. He said all three – legislative, judiciary and executive – enjoy functional independence in the exercise of their powers and should not intrude “save where the encroachment is unavoidable and constitutionally permissible”.
“A genuine commitment to the preservation of comity among the three arms of the state insists on their vigilance against an inadvertent but effective usurpation of the powers and authority of the others,” Mogoeng said.
He added that the judiciary may encroach on the policy determination domain only when it is necessary and unavoidable to do so.
Mogoeng’s warning follows last month’s march to the Durban High Court by the ANC in KwaZulu-Natal over what they claimed was “judicial overreach” after North Gauteng High Court Judge Bashier Vally ordered President Jacob Zuma to reveal the reasons behind his cabinet reshuffle.
The majority judgment, with former Acting Deputy Chief Justice Bess Nkabinde, Acting Justice Phineas Mojapelo and newly appointed Deputy Chief Justice Raymond Zondo concurring, set aside the Supreme Court of A ppeal’s (SCA) May 2016 ruling declaring unlawful, invalid and setting aside part of the Broadcasting Digital Migration Policy made by Muthambi in March 2015.
The policy set aside by the SCA outlined that set top boxes supplied to poor households would not have capabilities to encrypt broadcast signals. Encryption refers to the scrambling of the broadcast signal while it’s on its way to the customer’s TV set.
The National Association of Manufacturers of Electronic Components, SOS Support Public Broadcasting Coalition, e.tv and Media Monitoring Africa had complained that Muthambi did not consult them when she amended the policy. Muthambi’s policy also left it open to free-to-air broadcasters to decide whether to encrypt their signals and do so with their own funds.
Mogoeng found that the main and arguably sole repository of the constitutional and statutory authority to formulate broadcasting policy is the minister’s. Muthambi has since been replaced by Ayanda Dlodlo. Dlodlo has reportedly backed the encryption of settop boxes.
‘‘Judiciary may encroach only when its necessary