Subscription channel M-Net was in favour of Communications Minister Faith Muthambi’s amendment to the Broadcasting Digital Migration Policy in fear of competition, e.tv told the Constitutional Court.
Advocate Steven Budlender, for e.tv, said that setting aside the amendment would deprive South Africans who could not afford DStv from affordable, quality viewing.
“South Africa is at the point where there can be real competition, which is why M-Net was against the matter,” he said.
Budlender argued that Muthambi provided no evidence that she had consulted the Independent Communications Authority of South Africa (Icasa) and the Universal Service and Access Agency of South Africa (Usaasa).
“Icasa and Usaasa do not start on a clean scale because they must consider the minister’s policy.”
Budlender said it was not good enough for the Muthambi to simply say she consulted with stakeholders.
“An affidavit was needed from Icasa and Usaasa stating that there was a consultation between them and the minister.”
He said that the only way that the digital migration could proceed was if the court ruled on lawful consultation between all parties affected by the policy.
Earlier, Budlender argued that there was never a bar against encryption previously and that it was clear that the government felt the amended policy would be implemented.
“The minister admitted that it was a government policy that the government would not pay for encryption.”
He added that government policies were meant to be followed and that if they waited for the policy to be implemented, e.tv would be challenged with the question of why they waited and did not challenge the minister’s decision.
Chief Justice Mogoeng Mogoeng asked why e.tv wanted to ride on the back of the government.
“Why should government help you make money,” Justice Mogoeng asked.
Budlender said that the public deserved quality programming.
“If the minister had said I don’t like encryption because of its disadvantages, e.tv would live with it, but the minister has said she doesn’t mind encryption as long as she doesn’t pay for it,” he said.
He said they would pay for the differential costs but they were not asked and given that option. “The process is about the public not just e.tv.”
Budlender said that rolling out their own set top boxes to about five million viewers would cost them billions of rand.
Earlier, advocate Wim Trengove SC, for Muthambi, told the court a decision on the amended set top box (STB) policy was unnecessary as it would have no legal 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 subsidised 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.
Later Max du Plesis, for the Support Public Broadcasting Coalition and the Media Monitoring Africa, said his clients were present purely for public interest and that they recognised the competition dynamics which was probably the reason why Mnet and SABC agreed with not encrypting.
He emphasised that e.tv mentioned that had they known the minister’s concern was paying for the boxes, they would’ve paid for it themselves.
“SABC for R500 million agreed that it would not encrypt channels once digital migration happened.”