Response to Ms Faith Muthambi`s statement on broadcast digital migration

21 June 2016

The statement by the Communications Minister Ms Faith Muthambi released earlier today on her broadcasting digital migration policy is both unprecedented and inaccurate.

It not only continues to misrepresent both the contents of the digital migration policy and the Supreme Court of Appeal (SCA) judgment that threw it out last month, but also attempts to personally attribute an SACP position on broadcasting digital migration and the SCA judgment to a fellow-Cabinet Minister, Dr Blade Nzimande.

In his capacity as SACP General Secretary Comrade Blade Nzimande has the responsibility to represent the Party`s views and policy positions without fear or favour. It is inconceivable to suggest that he must not perform this work simply because he is a Cabinet Minister. The SACP wishes to state it in no uncertain terms that it will not allow any attempt to try and isolate its General Secretary Comrade Blade Nzimande for representing its views and policy positions. In the same vein, neither will the SACP allow any misinterpretation of its views and policy positions to thrive.

On 5 June the SACP Central Committee issued its statement stating that:

"The CC noted and welcomed last week`s Supreme Court of Appeal judgment that the Department of Communication`s policy decision in favour of unencrypted TV set-top boxes "was made in an irrational and thus unlawful manner and is inherently irrational as well." The SACP has consistently argued that obduracy in this matter flies in the face of the ANC National General Council`s own decisions, as well as the ANC`s Communication Commission. It is hard not to draw the conclusion that this stubbornness has been directly influenced by Koos Bekker`s Naspers media empire, with Multichoice currently holding an extremely lucrative monopoly on encrypted TV programming in South Africa. Persistence in trying to drive through unencrypted Set-Top Boxes in defiance of ANC policy has delayed South Africa`s digital migration and indirectly the roll-out of digital migration. We have fallen far behind less developed countries in our continent, including Rwanda, Kenya and Tanzania, all of which now have 100 percent coverage. Once more corporate and parasitic capture of parts of the state is gravely undermining development in our country."

This is the position of the SACP. Ms Muthambi wants society to believe that it is the personal view of Dr Blade Nzimande in his capacity as a Cabinet Minister. She is misleading the public and is completely out of order. The SACP will not allow her to outsource or privatise its collective positions and use such outsourcing or privatisation to launch personalised attacks on Cabinet colleagues.

The statement by the Communications Minister is also unusual in that, while issued in the name of the Ministry, it is clearly a personal statement from her, including as it does the phrase "I refer to …" The effect of this is that the statement constitutes a personal attack.

The SACP wishes to take issue with Ms Muthambi`s attempt to cover her failure to abide by the Cabinet decision of 4 March 2015 on the broadcast digital migration policy with a smokescreen of some not-so-useful legal jargon.

The facts of the matter are, clearly, as follows:

On 4 March 2015, the "Cabinet approved the Broadcasting Digital Migration Amendment Policy with the inclusion of the control system in the Set Top Box, which will be clearly defined when the policy is published".
When the amended policy was subsequently published it contained no provision for any meaningful or functional control system. It in fact explicitly prohibited the inclusion of such a system. The suggestion contained in Ms Muthambi`s statement today that "such a control system has been put in place" and that it will serve to "prevent the sale of government subsidised STBs (Set Top Boxes) outside of the borders of South Africa" are entirely inaccurate. The system the Communications Minister claims to have put in place has repeatedly been publicly demonstrated to be easily overridden by generation of a simple computer procedure which will enable Set Top Boxes manufactured for the South African market to be both sold and used outside of this country`s border.
More importantly, the policy, and the pseudo-control system she refers to, ignore the South African Bureau of Standards standard for the manufacture of Set Top Boxes in South Africa: SANS862. SANS862 requires a control system capable of various functions which require encryption capability.
Ms Muthambi`s attempt to define what the SCA did and did not throw out of the policy is simply an attempt to throw up yet another smokescreen. The SCA did not select from the policy what should and should not be included. It threw out Muthambi`s entire policy amendment and clearly stated that it was "irrational", "an edict" and that she acted "ultra vires" - meaning that she acted beyond her legal power or authority.
While the SCA did pass judgment on some aspects of the policy and found them wanting, it also found that the process Ms Muthambi used to develop it was undemocratic - it excluded any attempt at genuine public consultation. This is a constitutional requirement in South Africa: to exclude public consultation is unconstitutional. The entire policy is therefore invalid and of no force and effect. The only valid policy is that which Ms Muthambi sought to replace: the policy approved by the Cabinet and published in 2012.
It is not clear that Ms Muthambi has distributed any STBs, despite her statement that she has done so - indeed, National Treasury has halted tenders awarded by the Communications Department for STB manufacture, and is investigating the competence of those to whom Ms Muthambi awarded them.
If she has, in fact distributed digital terrestrial STBs, they are either manufactured and distributed in breach of her policy - but compliant with the SABS standard, or in breach of the SABS standard - but compliant with her policy.
If they are not compliant with the SABS standard, Ms Muthambi is breaking the law - the SABS Act prohibits the manufacture or distribution of non-SABS compliant equipment.
Ms Muthambi`s statement today described encryption as "a Pay TV technology". This statement demonstrates either a scandalous ignorance of the television sector, or a breath-taking cynicism and willingness to mislead the public. Encryption is routinely used by free-to-air public and private broadcasters in direct-to-home or DTH (satellite) and digital terrestrial television signal distribution - including by the BBC, hardly one of the world`s leading pay TV operators, and the SABC, over which Ms Muthambi exercises oversight (so she should know better). The SABC uses encryption in its free-to-air DTH distribution - the very boxes Ms Muthambi handed out to viewers in the Northern Cape near the Square Kilometre Array telescope (because it requires no terrestrial signal interruption, local residents receive their TV via satellite).
The policy amendment thrown out by the SCA, and rejected by the SACP, is, in addition a breach of ANC policy, as articulated in the resolutions of its 2015 national general council. The relevant paragraphs of the "Battle of Ideas" resolution from the ANC national general council read:

"Cabinet intervened and took a decision in December 2013 that accommodates all scenarios. There is no reason for the delays in the implementation of ANC policy and Cabinet decision of December 2013 regarding the Broadcasting Digital Migration Policy (BDM). (Paragraph 136)

"The Digital Migration Policy must be finalized through the determination of the performance period/dual illumination and implemented for the digital services to start. Cabinet must implement the December 2013 decision and avoid further delays that may arise from a deviation from that decision. The performance period must commence on 1st April 2015." (Paragraph 137)"

It is to be noted that the ANC decision refers to the "Cabinet decision of December 2013" and not to that of March 2015.

Issued by the SACP

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