Minister Faith Muthambi. Picture: TREVOR SAMSON
Minister Faith Muthambi. Picture: TREVOR SAMSON

Communications Minister Faith Muthambi’s 2015 policy decision on the encryption capability of government-supplied set top boxes for digital migration is not reviewable by a court.

This was the submission by her counsel, Wim Trengove SC, to the Constitutional Court on Tuesday.

Muthambi’s counsel and those of the SABC and Electronic Media Network were appealing against the Supreme Court of Appeal ruling last year to set aside Muthambi’s 2015 amendment of the digital broadcasting migration policy. In that amendment‚ Muthambi stated that the set top box control system shall not have encryption capabilities.

This meant any broadcaster that wanted to broadcast encrypted signals should bear the costs of supplying five million boxes at its cost.

The appeal court agreed with‚ which took issue with this policy, and said Muthambi’s amendment was irrational and in breach of the principle of legality as there was no process of consultation.

Trengove said Muthambi’s policy amendments were made after submissions received from stakeholders by her predecessor‚ Yunus Carrim‚ in 2013.

"She said that the state-sponsored set-top boxes would not have encryption capability. It was a clarification of the policy as it stood‚" Trengove said.

He said that mere policy making did not constitute an exercise of public power.

"The policy is to provide guidance to the executive in the transition from analogue to digital. It is not binding on anyone. Why should it be reviewable if it is not binding on anyone‚" Trengove said.

Judge Sisi Khampepe asked Trengove if it was a requirement for the exercise of public power to be binding before that decision could be reviewed. Trengove said it was.

"Courts do not engage in debates about the validity of decisions which have no effect. Courts do not intervene where it is not necessary to do so."

Trengove said if government policy was subject to review‚ courts would be inundated with numerous review challenges by the citizens.

He also said had no legal interest in the amendment on encryption.

"They ( have a commercial interest. It lies not in the policy but in the ultimate implementation. It is also not clear what that commercial interest is‚" Trengove said.

The case revolves around the country’s long-delayed migration from analogue to digital broadcasting.

About 8-million households do not have TV sets with in-built devices to convert signals broadcast digitally. This means that for the digital migration to happen‚ there is a need for set-top boxes to receive and convert the digital signal.

About 5-million houses cannot afford the cost of the set-top boxes and government has decided to supply them with these boxes at no cost to them.

At issue in this case is whether government-supplied set-top boxes should be able to decrypt signals that are encrypted; wants to encrypt signals it transmits and wants the subsidised set top boxes to have decryption capability.

The case continues.

TMG Digital

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