The policy decision made by Communications Minister Faith Muthambi in 2015 on the encryption capability of government-supplied set-top boxes for digital migration is not reviewable by a court.
This submission was made by Muthambi’s counsel Wim Trengove SC before the Constitutional Court on Tuesday.
Broadcaster e.tv needs these set-top boxes to have the capability to decipher the encrypted signals so that it can compete with pay-TV broadcasters in getting premium high-definition content.
If the set-top boxes do not have the ability to decipher encrypted broadcast signals‚ e.tv will be unable to purchase content from overseas suppliers‚ which sell encrypted content.
Steven Budlender SC, representing e.tv‚ said the broadcaster had always maintained its support for encryption. Muthambi’s counsel‚ together with those of the SABC and Electronic Media Network‚ was in court seeking to set aside the Supreme Court of Appeal’s judgment last year.
That judgment set aside Muthambi’s amendment of the Digital Broadcasting Migration Policy in 2015.
In that amendment‚ Muthambi stated the set-top box control system shall not have encryption capabilities.
This meant any broadcaster that wanted to broadcast encrypted signals should bear the costs of supplying 5-million boxes at its cost.
However, e.tv took issue with this policy. The appeal court agreed with e.tv‚ saying Muthambi’s amendment was irrational and in breach of the principle of legality as there was no process of consultation.
Trengove said Muthambi’s policy amendments were made following submissions received from stakeholders by her predecessor‚ Yunus Carrim‚ in 2013. He added that mere policy making did not constitute an exercise of public power.
Judge Sisi Khampepe asked Trengove whether it was a requirement for the exercise of public power to be binding before that decision could be reviewed. Trengove said it was.
"They [e.tv] have a commercial interest. It lies not in the policy but in the ultimate implementation. It is also not clear what that commercial interest is‚" Trengove said.
The case revolves around the country’s long delayed migration from analogue to digital broadcasting.
The Constitutional Court reserved judgment.
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