ConCourt delivers blow in analogue switch-off showdown

Simnikiwe Mzekandaba
By Simnikiwe Mzekandaba, IT in government editor
Johannesburg, 28 Jun 2022

The Constitutional Court (ConCourt) has set aside the Pretoria High Court order in the litigious matter concerning the country’s analogue switch-off (ASO) deadline.

The ConCourt replaced the high court order with an order declaring the ASO date and the imposed deadline to register for set-top boxes (STBs) unconstitutional.

Etv approached the ConCourt on an urgent basis to appeal a judgement and order of the High Court of SA, Gauteng Division, Pretoria, following its decision to defer the ASO deadline from 31 March to 30 June.

The free-to-air broadcaster, joined by Media Monitoring Africa and SOS Support Public Broadcasting, argued that minister Khumbudzo Ntshavheni’s decision to determine the ASO date to be 31 March, amended by the high court to 30 June, must be declared unlawful.

Etv also argued the minister had a duty to consult the public, including the applicants, before imposing the STB registration cut-off date determining the analogue switch-off date.

Government has undertaken to assist indigent households that applied for STBs, which are required to convert digital broadcasting signals on analogue TV sets. Qualifying households − those with an income of R3 500 per month or less – are required to register for these devices at their nearest SA Post Office branch.

Handing down the unanimous judgement, justice Nonkosi Mhlantla granted Etv’s leave to appeal directly to the ConCourt on an urgent basis, saying the appeal is upheld.

She stated the decisions of the minister, as well as the order of the high court, had to be set aside, and replaced with the following:

“A. The announcement of 31 March 2022 as the final switch-off date of the analogue signal and the end of dual-illumination issued by the minister of communications and digital technologies on 28 February 2022, in terms of the broadcasting digital migration policy as amended, is unconstitutional, invalid and is set aside.

“B. The minister’s decision to impose a deadline of 31 October 2021 to register for set-top boxes is unconstitutional, invalid and is set aside.

“C. The minister must pay the applicants’ costs in this court, including the costs of two counsels.”

The analogue switch-off process is an integral part of the country’s much-delayed broadcast digital migration programme. Additionally, it will make available the sub-1GHz (700MHz-800MHz) spectrum bands licensed during ICASA’s “historic” spectrum auction in March.

Justice Mhlantla also stated that although the submissions made by Vodacom, Sentech and ICASA carry some weight, and while the court was mindful of the time constraints and the need to balance the interests of all the parties concerned, such considerations cannot be a basis for the court to endorse a process and decisions tainted by irrationally or illegality.

Vodacom, Sentech, the chairperson of ICASA and ICASA joined the minister in opposing Etv’s application.

Mhlantla added: “This court bears an obligation to safeguard the interests of more than two million indigent households, which have been impacted by the registration process and will undoubtedly be affected by analogue switch-off.

“Moreover, the concerns raised by these respondents further highlight the urgent need for the minister to take action to reconcile the planning for the analogue switch-off and the STB process with the demands of rationality.”

All submissions being considered, Mhlantla said the demands of justice and equity require that the minister’s decision be declared invalid and set aside. The decision of the high court also falls to be set aside, she stated.

“It will be just equitable to leave the implementation of this judgement to the minister to determine the analogue switch-off date in a manner that is consistent with the prescripts of legality.”