--
TV encryption: Muthambi wins ConCourt battle --
Fri, 09 Jun 2017 10:41
--
Former communications minister Faith Muthambi has won a constitutional court battle against e.tv over encryption in set-top boxes for digital terrestrial television.
TechCentral reported that the minister, who was shifted out of the communications portfolio at the end of March when President Jacob Zuma reshuffled his cabinet, had challenged a supreme court of appeal judgment in favour of e.tv.
In May 2016, e.tv won a significant battle in the long-running war over encryption when the supreme court found that an amendment to the broadcasting digital migration policy by Muthambi, made in 2015, did not follow a process of consultation and was irrational and in breach of the principle of legality. This decision has now been overturned by the constitutional court.
The judgment potentially throws government s long-delayed digital TV migration plan into further chaos. Last month, newly appointed communications minister Ayanda Dlodlo said in parliament that her department s policy on the issue will shift to one that favours encryption, in line with ANC policy. It s not immediately clear what impact Thursday s constitutional court judgment will have on Dlodlo s decision.
The following statement issued by the constitutional court outlines the details of the judgment:
Today, the Constitutional Court handed down judgment in three consolidated applications for leave to appeal against a judgment of the supreme court of appeal (SCA), which held that a clause of an amendment to the broadcasting digital migration policy adopted by the minister of communications was invalid and therefore unlawful.
South Africa will undergo a digital migration process to transition broadcast television signals from analogue to digital form. However, millions of households in South Africa do not have television sets that contain a built-in device to convert digital broadcast signals. Those television sets will require set-top boxes (STBs) to convert digital signals. In line with the policy, STBs will be provided to about 5m lower-income households on a subsidised basis.
At the same time, there has been ongoing debate among key stakeholders regarding whether these subsidised STBs should have the capability to decipher encrypted digital broadcast signals. The applicants contended that the subsidised STBs should not have decryption capabilities. The first respondent, e.tv, argued that they should. When it was adopted in 2008, the policy provided for decryption capabilities. However, in March 2015 the minister published the amendment, which inserted a clause in the policy stating that the subsidised STBs shall not have the capability to decipher encrypted broadcast signals.
After the Amendment, e.tv brought an application to the high court to review the Minister s decision. It argued that the Minister did not have the power to effect that Amendment and that certain consultations as required by the Electronic Communications Act 36 of 2005 (ECA) had not been made. E.tv argued that the minister was required to consult with the Independent Communications Authority of South Africa (Icasa) and the Universal Service and Access Agency of South Africa (Usaasa) before adopting the amendment. The high court held that minister had the power to pass the amendment under the applicable legislation and the constitution. The high court also held that the amendment satisfied the requirements of legality review, including lawfulness and rationality. Accordingly, the high court dismissed e.tv s application with costs.
E.tv lodged an appeal against the high court ruling to the SCA. The minister and 12 other respondents, including the SABC and M-Net, opposed the appeal. The SCA upheld the appeal with costs.
Aggrieved by the SCA s judgment, M-Net, the minister and the SABC filed applications for leave to appeal to the constitutional court. These applications were consolidated. The applicants sought the judgment and order of the SCA to be set aside. The applications are opposed by e.tv and others, including SOS Support Public Broadcasting Coalition and Media Monitoring Africa.
In the majority judgment, Mogoeng CJ (Nkabinde ADCJ, Mojapelo AJ, Zondo J, concurring and Jafta J concurring in the order) held that policy-making is fundamentally a power assigned by the constitution exclusively to the executive. Also, the majority held that consultation is markedly different from negotiation, which is essentially about consensus-seeking. Consultation is about the solicitation of such views as key roleplayers and interested persons might have on a policy proposal.
The majority holds that the requirements for consultation had already been met fully through consultative processes embarked on by Muthambi s predecessors, when she took over. There was no longer any obligation to consult with Usaasa, Icasa or any other interested person. That opportunity had been availed to all, particularly when Carrim published his policy proposals. Muthambi was at large to solicit the views of any other person or entity she thought could be of help to her. Although she went about it in the most unfortunate way, her conduct did not create a right for e.tv which it otherwise did not have.
The majority holds that the standard of rationality contained in legality review is not some supra-constitutional entity or principle that is uncontrollable and that respects or knows no constitutional bounds. Like all other constitutional principles, it, too, is subject to constitutional constraints and must fit seamlessly into our constitutional order, with due regard to the requirements of the doctrine of separation of powers. It is a good governance-facilitating, arbitrariness- and abuse-of-power-negating weapon in our constitutional armoury to be employed sensitively and cautiously.
The majority
Most recent headlines
06/10/2025
France T l visions, France's leading broadcaster, has received the 2025 EBU ...
04/09/2025
Monumental Sports & Entertainment (MSE), in collaboration with Dalet, has been a...
30/08/2025
WASHINGTON The Federal Communications Commission has adopted its FY 2025 Regulatory Fees Order that establishes the regulatory fee rates for the broadcast stati...
29/08/2025
Australian Red Cross and SBS launch training to help workplaces in the fight aga...
29/08/2025
The National Film and Video Foundation (NFVF), an agency of the Department of Sp...
29/08/2025
L3Harris Technologies has concentrated decades of expertise across the entire enterprise to develop affordable and reliable best-of-breed solutions to rapidly c...
29/08/2025
BURBANK, Calif. The CW Network and the Pac-12 Conference have announced a new media rights deal that will extend their broadcast partnership beginning with the ...
29/08/2025
NEW YORK Gracenote has released a new analysis of its global video dataset showing that the number of FAST channels grew nearly 14% from Q1 2025 and 76% since 2...
29/08/2025
SAN JOSE, Calif. Harmonic has announced a series of improvements to its live sports streaming solution that the company said will improve fan engagement, protec...
29/08/2025
NEW YORK and LOS ANGELES Fox Corp. and YouTube TV last night announced a renewal of the full portfolio of Fox networks, including Fox News Channel, Fox Business...
29/08/2025
Budapest, Hungary, August 2025 - The integration of Microsoft Teams Rooms (MTR) with Lightware's Taurus universal matrix switchers delivers a new level of f...
29/08/2025
Frequency, the engine behind many of the world's best-known streaming television channels, today announced it will launch Studio Live, a next-generation uni...
29/08/2025
In an era when AI and cyber resilience are essential, Scality will mark the 10th anniversary of Scality Day on October 16, 2025 in Paris. This flagship global e...
29/08/2025
Disguise's In-House Creative and Technical Teams Pre-Visualised, Programmed and Delivered Content for the Experience, All Powered by EX 3+
Technology solu...
29/08/2025
Disguise will be demonstrating the latest workflows for TV, film and live events on a number of partner booths at the show
Disguise, the industry-leading tech...
29/08/2025
STOCKHOLM, Sweden Accedo will showcase Accedo Compose, its AI agent-powered modular orchestration layer that assists streaming providers in transitioning client...
29/08/2025
LOS ANGELES Cineverse has announced that it is working with Xperi to bring four of its streaming channels to automobiles for the first time as part of the DTS A...
29/08/2025
DALLAS & ATLANTA Gray Media has announced an agreement with the sports streaming service Victory+ to simulcast 17 Dallas Stars NHL games in 15 television market...
29/08/2025
NEW YORK AND CULVER CITY Comcast NBCUniversal and Amazon have announced new and extended distribution agreements that will expand the content available on their...
29/08/2025
FOOTHILL RANCH, Calif. RED Digital Cinema will feature its Cine-Broadcast Module supporting live broadcast workflows during IBC2025, Sept. 12-15, at the RAI Ams...
29/08/2025
29 Aug 2025
Kyivstar Rings Opening Bell at Nasdaq Marking Landmark Listing and ...
29/08/2025
More than half of all NFL games live on Sky for the first timeFriday 29 August 2025
Sky Sports has announced a new three-year deal with the NFL, extending its ...
29/08/2025
Back to All News
RIV4LRIES: The Trailer of the New Series With Samuele Carrino ...
29/08/2025
Get ready for an inspiring and emotional insight into the world of competitive Irish dancing with My Story: Tomi Champion of the World airing on RT 2 this monda...
29/08/2025
RT has today announced that David McCullagh is to be the new presenter of RT Radio 1's flagship Today programme, which airs every weekday at 10am, replaci...
28/08/2025
By Kristin Feeley, Director, Documentary Film & Artist Programs
If you want to tell untold stories, if you want to give voice to the voiceless, you've got ...
28/08/2025
Directed by Steven Bognar and Julia Reichert, Sundance Institute-supported Amer...
28/08/2025
Corridos have been a cornerstone of M sica Mexicana for generations, telling stories rooted in everyday life. Now, a new chapter is taking shape: motivational c...
28/08/2025
Los corridos han sido un pilar de la M sica Mexicana durante generaciones, contando historias enraizadas en la vida cotidiana. Ahora, un nuevo cap tulo est tom...
28/08/2025
Earlier this month, we promised our Verano Forever party would bring the heat, a...
28/08/2025
L3Harris will provide the Polish F-16V fleet with the Viper Shield electronic warfare system as part of an upgrade program....
28/08/2025
Bilbao, August 26, 2025 - AgileTV, an international television and video technol...
28/08/2025
Ken Wilkinson is an Emmy Awards nominated New York audio engineer who specialises in production sound mixing for film, commercial, episodic and documentary work...
28/08/2025
NEW YORK FuboTV today announced that it will launch Fubo Sports, a skinny bundle that focuses on sports with a subscription price of $56 monthly....
28/08/2025
NEVADA City, Calif. At IBC2025, Sept. 12-15 at the RAI Amsterdam, Telestream will debut its new Global Ingest strategy, introducing a next-generation ingest arc...
28/08/2025
Dr. Rhoda Bernard Releases Groundbreaking Debut Book on Accessible Arts Educatio...
28/08/2025
TAG Video Systems, the leader in software-based IP end-to-end workflow monitoring, deep probing, and real-time visualization, has named Oliver Gappa as Sales Di...
28/08/2025
AI-based voice enhancement will be among a series of innovations making their IBC 2025 debut on the DHD stand B46 in Hall 8 at the RAI Amsterdam Convention Cent...
28/08/2025
Telef nica Servicios Audiovisuales (TSA), the leading system integrator and service provider in the media sector in Spain, with the support of Appear, the globa...
28/08/2025
To fully immerse sailing fans in the world's biggest offshore yacht race, production company, Optical Media turned to LiveU's On-site Production solutio...
28/08/2025
Working with Calrec on its most recent overhaul, radio and television broadcaster, WNED has migrated to a fully IP infrastructure with multiple Type R consoles,...
28/08/2025
Cleeng, the Subscriber Retention Management (SRM ) inventor, has unveiled Cleeng Pro, the first-ever direct-to-consumer (D2C) subscription management platform t...
28/08/2025
Zixi, the industry leader in live broadcast-quality video over IP, today announced that French media distribution platform OKAST has selected Zixi to enable rel...
28/08/2025
Solution offers a streamlined, speaker-free architecture to optimize integration with premium external loudspeakers and advanced loudness metering
Nixer Pro Au...
28/08/2025
Cinegy, the premier provider of software-defined television technology, has announced a strategic partnership with Vision One Touch Film Production Services L.L...
28/08/2025
Telestream, a global leader in media workflow technologies, will debut its new Global Ingest strategy at IBC2025, introducing a next-generation ingest architect...
28/08/2025
Tier 1 operator selects Broadpeak to power high-performance, unified CDN solution across Norway, Sweden and Finland
Broadpeak, a leader in streaming and moneti...
28/08/2025
Leading video software provider, Synamedia, today announced that 24 Frames Digital, one of India's leading live event streaming service providers, has chose...
28/08/2025
Meet VisualOn at IBC2025: See What's Next in AI-Powered Video Streaming Join VisualOn at IBC2025 and discover how our AI-driven Optimizer and advanced media...
-- 
