E.tv wins court appeal over encryption - TechCentral

E.tv wins court appeal over encryption


E.tv has won the latest battle in the long-running war over digital terrestrial television in South Africa, potentially throwing the long-delayed project off-track once again.

The supreme court of appeal on Tuesday found that an amendment in 2015 by communications minister Faith Muthambi to South Africa’s digital migration policy did not follow a process of consultation and was irrational and in breach of the principle of legality.

The court found, too, that the amendment did not achieve its purpose and was thus irrational and invalid. Muthambi purported to bind regulatory authorities and broadcasters and thus acted ultra vires, the court said.

The court set aside the amendment to the policy, throwing the country’s digital migration project, which was originally meant to be completed five years ago, in 2011, into further disarray.

The judgment is particularly critical of Muthambi’s failure to consult with communications regulator Icasa and the Universal Service & Access Agency of South Africa (Usaasa) over the amendment.

“…the failure by minister Muthambi to consult Icasa and Usaasa is even more egregious given their statutory duties. So, too, the failure to consult the appellants (e.tv and others), all of whom had an interest in the policy, was quite simply irrational.”

E.tv was supported in its application by an industry body called Namec as well as Media Monitoring Africa and the SOS Coalition.

E.tv late last year filed an application for leave to appeal a judgment by the high court that went against it in the ongoing battle over whether South Africa’s digital terrestrial television signal will be encrypted or not.

The high court had found that Muthambi’s amendments to the digital migration policy, gazetted in March 2015, would remain in force.

The judgment was a significant victory for both communications minister Faith Muthambi and for DStv parent MultiChoice, which was vehemently opposed to government providing subsidised set-top boxes that use an encryption-based conditional access system.

The pay-TV broadcaster argued, among things, that doing so would amount to unfair competition. E.tv, on the other hand, remains strongly in favour of the use of such a system in the set-top boxes, arguing that it is needed to prevent the “ghettoisation” of free-to-air television in South Africa.

Muthambi’s decision not to require encryption in the set-top boxes was a reversal of an earlier cabinet decision.

The appeal court did not make a determination on the merits or otherwise of using encryption.

It found in favour of e.tv on costs.

E.tv welcomed the judgment. Its chief operating officer, Mark Rosin, said the ruling “allows the possibility of a strong and stable digital terrestrial television platform to South African free-to-air television viewers offering the best local and international content”.

Muthambi’s spokesman, Mish Molakeng, said the minister would issue a statement on the court’s judgment soon.  — (c) 2016 NewsCentral Media


  1. Your conclusion at 2 AM that this is a good decision is rather premature, I think. It is only beneficial when Gov would finally abandon that more than idiotic idea of providing 6 m poor households with a free STB.

    When this appeal court decision would stand, it would mean that all STBs produced locally by Gov up till now are useless and can be scrapped. The production costs, or the costs per unit have always been kept a secret.

    My gut feeling has always been that most of these very expensive STBs are going to end up dumped in very good working condition, simply because they were not necessary or unwanted freebies. R15 Billion down the drain.

    The whole Digital Migration has been ill conceived, and disastrously executed.

  2. Andrew Fraser on

    In this case, unfortunately, Muthambi made what was probably the correct decision for the wrong reasons and in the wrong way. I’m not suggesting that she’s inept,… actually, yes, I’m suggesting that she’s inept, …and compromised. But even a stopped clock is right twice a day.

    Effectively she is so inept that even when she makes a decision that is good for the country in the long run, it cannot be defended in court.

  3. Andrew Fraser on

    I’m still waiting for anyone (SOS, eTV etc.) to explain how encryption is going to allow for better quality programming to FTA viewers. It is a red herring, the barrier to more current, high quality HD programming is cost, not rights management. Digital TV broadcasts already have a physical barrier to distribution in terms of transmitter coverage. The HDMI standard has HDCP protection against copying, so what more is required?

    The encryption argument is put forward by two distinct parties (I’m not sure which one SOS fits into, or if they’re just noch-schleppers):
    1. Companies that wish to use the DTV platform to launch pay TV services – i.e. e-TV.
    The costs of producing and distributing your own STBs is immense, so how much better would it be if the government subsidised your roll-out. 5 Million set-top boxes at no cost to consumers, and no cost to you. Bonus. Except that it isn’t government paying, it is the taxpayer.

    2. Certain local manufacturers want encryption because it means that the locally produced STB will be different from those used in the rest of the world. Making imported STBs (and integrated TVs) incompatible ensures a captive market and that is never a good thing. Effectively it drives up prices and slows innovation. That will mean that the taxpayer will be funding a device that will cost multiples of the international benchmark price for similar devices. Effectively the taxpayer will be funding locally uncompetitive business.

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