Cape Town – Advocate Wim Trengove, SC, told the
Constitutional Court on Tuesday that a decision on the amended set top box
(STB) policy was unnecessary as it would have no legally binding effect.
Trengove, who is acting for Communications Minister Faith Muthambi, was quizzed
by Chief Justice Mogoeng Mogoeng and other judges on the bench about his client’s
decision to amend the Broadcast Digital Migration Policy, which now states that
set top boxes should not have decryption capabilities.
Following the minister’s amendment in 2015, e.tv brought
an application to the high court to review the minister’s decision and argued
that she did not have the power to do so because necessary consultations had
not taken place.
However, the e.tv application was dismissed with costs.
South Africa is set to undergo a digital migration process to transition
broadcast television signals from analogue to digital. In 2015, Muthambi
published an amendment which included a clause in the Broadcast Digital
Migration Policy stating that the subsidised set top boxes shall not have the
capability to decipher encrypted broadcast signals.
On Tuesday, Trengove told the Constitutional Court that
the amendment was not review-able as it had no binding legal effect. “It will
never have any effect and if it does, the Independent Communications Authority
of South Africa (ICASA) and the Universal Service and Access Agency of South
Africa (USAASA) will have to consider the matter,” Trengrove said.
E.tv has no legal interest in the amendment but ICASA
might. They have a commercial interest in the implementation and it’s not clear
what the commercial interest is.
Mogoeng asked Trengove about the rationality of the
policy and whether there was room for it to be challenged.
Trengove said the policy merely provided guidance to the
executives on the transition from analogue to digital TV and that it was not
binding on anybody. “Why should it be reviewed if it’s not binding. What is the
point of reviewing a policy that may not have effect?” asked Trengove
“The right to seek the review is limited to those who
should be consulted or someone else can’t come to court and argue the policy,” said
Judge Christopher Jafta.
“Indeed” Trengove responded.
“Why not save ICASA and USAASA from being influenced by a
policy that may be irrational and not be up to them to challenge. Why leave me
without guidance and policy?” asked Mogoeng.
Trengove said ICASA as a regulator was allowed to deem
the policy unlawful. The matter continues.
AFRICAN NEWS
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