By Nkosinathi Ndlovu.
The high court in Pretoria has ruled in favour of broadcaster e.tv in its bid to stop communications minister Solly Malatsi from switching off analogue television broadcasts on 31 March.
The judgment is a political setback for Malatsi, who had set the deadline for switch-off and then refused to budge even as he was dragged to court by e.tv.
The free-to-air broadcaster filed suit against Malatsi in January after the minister announced in December that all analogue broadcasts would be switched off at the end of March, or next Monday.
In its application, the broadcaster accused Malatsi of repeating a mistake made by his predecessor, Khumbudzo Ntshavheni, by not consulting industry stakeholders before deciding on a date for analogue switch-off.
“The operation of the analogue switch-off date of 31 March 2025, as announced by the minister of communications & digital technologies of 5 December 2024, is suspended. The minister is interdicted from taking any steps to implement the switch-off of analogue signals and ending dual illumination,” said Judge Selby Baqwa in the ruling, which was handed down on Thursday.
Costs order
Baqwa also slapped Malatsi with a costs order, which includes the cost of legal counsel for e.tv as the first respondent in the case, as well as those of industry lobby groups Media Monitoring Africa and the SOS Support Public Broadcasting Coalition, which were the second and third respondents, respectively.
In the judgment, Baqwa acknowledged that Malatsi indeed failed to consult with the industry prior to making his decision. He said neither cabinet nor Malatsi informed stakeholders that 31 March was being considered as the switch-off date. Furthermore, no invitation for comment on the feasibility of the deadline was sent to the industry despite the constitutional court highlighting that consultation was crucial when it ruled against Ntshavheni in 2022.
Other than the stipulations set out by the constitutional court ruling, Baqwa added that whenever an organ of state adopts a change of stance or “changes a horse midstream”, it has a duty to ensure all interested parties are informed of a proposed change. “The setting of the [analogue switch-off] at 31 March is irrational.”
On the subject of harm, Baqwa said “it is not a matter of speculation” that the public will suffer “severe consequences” if analogue transmitters are taken out of operation at the end of the month, adding that even Malatsi admitted as much in his answering affidavit to the court.
The matter of government’s failed set-top box distribution project took centre stage in the case, with representative for Media Monitoring Africa and the SOS Support Public broadcasting coalition, Adv Nick Ferreira accusing Malatsi of “lowballing” estimates for the number of people who will lose access to television broadcasts when analogue signals are switched off (because they have don’t have the means to access digital broadcasts).
From the numbers reported by the minister, it is quite apparent that it is not his case that the registered households will have set-top boxes installed by 31 March. He unequivocally states that such persons will receive set-top boxes by 31 December 2025, yet he persists in opposing this application,” said Baqwa.