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e.tv digital migration policy appeal success

South African free-to-air broadcaster e.tv has been successful its appeal against minister of communications Faith Muthambi’s digital migration policy, which the Supreme Court of Appeal (SCA) described as “irrational”.

According to the SCA, Muthambi’s amendment of the policy “did not achieve its purpose and was thus irrational and invalid” and set it aside.

Already having missed several deadlines, the judgement comes as a further setback for South Africa’s digital migration project. South Africa also missed the June 2015 deadline set by the International Telecommunication Union.

In March 2015, Muthambi announced fundamental changes to the original digital migration policy set out in 2013, which allowed for set-top boxes or decoders to recognise encrypted signals allowing use for free-to-air services.

Muthambi’s changes allowed for non-encrypted decoders, considered by e.tv to be detrimental to free-to-air services, who took the matter to court. Late in 2015 the North Gauteng High Court found in Muthambi’s favour, with e.tv subsequently appealing, and the SCA now ruling in its favour.

According to the SCA, Muthambi should have consulted industry players such as e.tv and showed a misunderstanding of the potential impact on the market. “In my view, the failure by Minister Muthambi to consult ICASA (the Independent Communication Association of South Africa) and USAASA (Universal Services and Access Agency of South Africa) is even more egregious given their statutory duties.  So too the failure to consult the appellants, all of whom had an interest in the policy, was quite simply irrational,” declared Judge CH Lewis.

“The Minister’s confusion as to the effect of the amendment shows its irrationality, and for that reason too it is in breach of the principle of legality and invalid. The appeal must succeed on the ground that the amendment was made in an irrational and thus unlawful manner and is inherently irrational as well,” he said.

In a Statement, e.tv said it welcomed the ruling, expressing the hope that the clarity provided by the ruling would aid in providing a proper approach to the implementation of DTT migration in South Africa.

Mark Rosin, chief operating officer of e.tv, reiterated the channel’s stance on digital migration. “We are committed to the DTT platform, but want it to happen in an inclusive and organised manner. This ruling allows the possibility of a strong and stable DTT platform to South African free-to-air television viewers offering the best local and international content,” he noted.

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