The constitutional court gave communications minister Khumbudzo Ntshavheni a bloody nose on Tuesday after it sided with e.tv in a high-stakes legal battle. It found that the switch-off of analogue television broadcasts in South Africa must be delayed to allow for more consultation.
In a stunning setback for the minister, the apex court found in a unanimous judgment that an earlier high court ruling, which had largely gone in her favour, must be set aside. E.tv’s leave to appeal the top court was granted on an urgent basis and upheld. E.tv was joined in the application by the SOS Coalition and Media Monitoring Africa.
In summary, the constitutional court ruled that:
- Ntshavheni’s decision on 28 February 2022 to set 31 March 2022 (later revised to 30 June 2022 by the high court) as the final date for analogue switch-off was unconstitutional and invalid.
- Her decision to impose the deadline of 31 October 2021 for indigent households to register to receive a free, government-subsidised set-top box was also unconstitutional and invalid.
- The minister must pay e.tv’s legal costs in both the high court and the constitutional court, including the cost of two counsel.
The judgment, which was handed down by Justice Nonkosi Mhlanta, found that Ntshavheni has the executive power to make decisions related to analogue switch-off and the registration deadline for set-top boxes. However, it found that there are constraints on this power and that “rationality” is required in decision making. She failed this test.
The court found the minister failed to consult with interested stakeholders prior to setting the analogue switch-off date. She did not, it said, provide an opportunity for affected parties to make representations on the switch-off date. This was “procedurally irrational”.
The minister also failed to inform the public adequately about the deadline for registration for government-subsidised set-top boxes, which could leave millions of indigent households without access to television broadcasts.
‘Insufficient’
“There was insufficient evidence placed before this court to show sufficient steps were taken to notify indigent persons of the looming deadline for registration,” the court said.
“The minister inferred that millions of indigent persons in South Africa were aware of the 31 October 2021 deadline. They were duly informed of the consequences of not registering by that date and accordingly made an informed and conscious decision not to register for state-sponsored set-top boxes. We do not agree with that submission. The process leading up to the deadline did not provide adequate opportunity for affected households to register and as a result the process is tainted with procedural irrationality,” it added.
Read the full judgment here (PDF)
Despite this adverse finding against the minister, the constitutional court decided to leave it up to Nsthavheni to determine a new analogue switch-off date and a new deadline for registrations for set-top boxes.
“It would be just and equitable to leave the implementation of this judgment to the minister to determine the analogue switch-off date in a manner that is consistent with the prescripts of legality,” it said.
Asked by TechCentral to comment on the judgment, a spokesman for Ntshavheni e-mailed a statement saying she “notes today’s judgment”, “respects” it and is “studying it in detail and will communicate in due course on the process [going] forward”. – © 2022 NewsCentral Media
