Set top box policy decision futile, deemed unlawful

ADVOCATE Wim Trengove SC told the Constitutional Court yesterday a decision on the amended set top box policy was unnecessary as it would have no legal binding effect.

Trengove, who is acting for Communications Minister Faith Muthambi, was quizzed by Chief Justice Mogoeng 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 (STBs) should not have decryption capabilities.

Following the minister’s amendment in 2015, e.tv brought an application to the High Court to review the minister’s decision and argued she did not have the power to do so because necessary consultations had not taken place.

However, the e.tv application was dismissed with costs.

South Africa is set to undergo a migration process to transition broadcast television signals from analogue to digital.

In 2015, Muthambi published an amendment which included a clause in the policy stating subsidised STBs shall not have the capability to decipher encrypted broadcast signals.

Trengove told the Concourt the amendment had no binding legal effect.

No 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 (Usassa) will have to consider the matter.”

“e.tv has no legal interest in the amendment but Icasa might. It has 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.

He said the policy merely provided guidance to the executives on the transition from analogue to digital TV and 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?” “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.

“Why not save Icasa and Usassa 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 Justice Mogoeng.

Trengove said Icasa as a regulator was allowed to deem the policy unlawful.

The matter continues.