By Lehlohonolo Lehana.
The constitutional court has on Tuesday ruled in favour of e.tv in a high-stakes legal battle. It found that the switch-off of analogue television broadcasts in South Africa must be delayed to allow for more consultation.
Broadcaster Etv approached the ConCourt on an urgent basis to appeal the High Court ruling that deferred the switch-off deadline from 31 March to 30 June.
Etv, joined by the SOS Coalition, Media Monitoring Africa and now the #SaveFreeTV campaign, is looking to the ConCourt to delay the ASO deadline.
The apex court found in a unanimous judgment that an earlier high court ruling, which had largely gone in her favour, must be set aside. E.tv’s leave to appeal the top court was granted on an urgent basis and upheld.
In summary, the constitutional court ruled that:
– Communications minister Khumbudzo Ntshavheni’s decision on 28 February 2022 to set 31 March 2022 (later revised to 30 June 2022 by the high court) as the final date for analogue switch-off was unconstitutional” and invalid.
– Her decision to impose the deadline of 31 October 2021 for indigent households to register to receive a free, government-subsidised set-top box was also unconstitutional and invalid.
– The minister must pay e.tv’s legal costs in both the high court and the constitutional court, including the cost of two counsel.
The judgment, which was handed down by Justice Nonkosi Mhlanta, found that Ntshavheni has the executive power to make decisions related to analogue switch-off and the registration deadline for set-top boxes. However, it found that there are constraints on this power and that “rationality” is required in decision making. She failed this test.
The court found the minister failed to consult with interested stakeholders prior to setting the analogue switch-off date. She did not, it said, provide an opportunity for affected parties to make representations on the switch-off date. This was “procedurally irrational”.
The minister also failed to inform the public adequately about the deadline for registration for government-subsidised set-top boxes, which could leave millions of indigent households without access to television broadcasts.
Despite this adverse finding against the minister, the constitutional court decided to leave it up to Nsthavheni to determine a new analogue switch-off date and a new deadline for registrations for set-top boxes.