1 June 2016
Yesterday, Tuesday 31 May 2016 the Supreme Court of Appeal (SCA) delivered a judgement on Digital Broadcasting Migration Policy, in particular, on the amendment made to the policy in 2015 without following due consultation processes.
The SCA characterised the amendment as "an edict" and found that by making it the Minister of Communication Faith Muthambi acted "ultra vires" - that is she acted beyond her legal power or authority. The SCA found that the amendment, which prohibited the inclusion of encryption and conditional access functionality in state-subsidised Set Top Boxes (STBs), did not achieve its purpose, was "irrational", and set it aside.
The SACP notes that immediately prior to Minister`s publication of her "policy decree", the Cabinet approved policy principles that retained a "control function" in STBs. The functions required of this "control function" included the ability to provide individual e-governance services, language specific message, STB security (e.g. in the case of theft), and so on. These are activities requiring individual STB addressability by the system - and thus conditional access and encryption. The policy decree published thereafter by the Minister, and which has now been rejected by the SCA as "irrational", removed the "control function" in all but name.
While the SACP is cautious about judicial intervention in executive processes, it recognises the necessity and validity of the judicial decision to compel the executive to comply with the Constitution and law. The executive should assess the manner in which it has handled this and other processes resulting in judicial rulings finding that it has acted inconsistent with the Constitution or unlawfully. Should this trend be allowed to continue, the legitimacy of executive actions will be rendered in a difficulty, with serious implications in the confidence of our people in government.
In October 2015 the SACP hosted together with our partners in the Media Transformation Campaign - Save our SABC Campaign, the National Association of Manufacturers in Electronic Components and Media Monitor Africa, who we congratulate for taking up the matter after it became necessary and the last remaining option to do so through a judicial review. On 3 October the summit adopted a declaration stating that:
"In line with the radical social and economic transformation that South Africa needs, the summit declared that all set-top boxes procured by the state through Universal Services Access Agency of South Africa (USAASA) must all be manufactured locally. As partners on media transformation, we will be campaigning for the adoption a multiplatform capable Set Top Box (multi-crypt). In order for our country to break from the yoke of private monopoly, the monopoly of the single Digital Video Broadcasting 2 (DBV-2) must end. We call for an alternative open source broadcasting standard and, in addition, for standard localization, to lower the cost of access both to the state as the subsidizer and to the workers and the poor."
The SACP reaffirms this correct position.
As the SACP, we have in particular raised serious concerns about a lack of participatory democracy and in particular a lack of sufficient consultation in the process that was followed by the Minister leading to her amendment. The SACP welcomes the judicial reinforcement of the concept of public participation in policy development processes, and will participate fully in any public participation process, and to ensure that such and its outcome are not irrational and in breach of the principle of legality.
As things stand, now the Digital Broadcasting Migration Policy reverts to the original 2008 policy published by Communications Minister Ivy Matsepe-Casaburri as amended by her successors Ministers Dina Pule in 2012 and Minister Yunus Carrim in 2013. The 2008 and subsequent 2012 and 2013 amendments are in line with ANC policy which the SACP supports.
Going forward our movement and the alliance must address the problem of its deployees in government who push for policies that contradict or deviate from set ANC and alliance policy positions.
The policy that has been found to be irrational, an edit, and set aside by the SCA actually feeds the accumulation interests of Naspers. The corporate capture of the policy space by Naspers, which has through its subsidiary Multichoice further colonised the SABC, delayed digital migration, again, to the accumulation interests of Naspers` pay-TV monopoly, Multichoice!
Issued by the SACP
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