IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT case no.: 140; 141; and 145/2016 SCA case no.: 1039/2015 GP case no.: 26166/15 In the matter between:
ELECTRONIC MEDIA NETWORK LIMITED First Applicant MINISTER OF COMMUNICATIONS Second Applicant SOUTH AFRICAN BROADCASTING CORPORATION Third Applicant SOC LIMITED
and
e.tv (PTY) LTD First Respondent
SOS SUPPORT PUBLIC BROADCASTING COALITION Second Respondent MEDIA MONITORING AFRICA Third Respondent
SECOND AND THIRD RESPONDENTS’ PRACTICE NOTE
PARTIES
1. The parties’ details and the case numbers appear from the heading.
NATURE OF THE MATTER
2. The first to third applicants have applied for leave to appeal against a decision of the Supreme Court of Appeal (‘SCA’) in which the SCA set aside the decision of
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the High Court, and declared that clause 5.1.2(B)(a) of the Broadcast Digital Migration Policy (‘BDM Policy’) was unlawful, invalid and set aside.
ISSUES ON APPEAL
3. Whether, in enacting clause 5.1.2(B)(a) of the BDM Policy (‘the encryption amendment’):
3.1. the Minister was obliged to follow the procedure for public consultation mandated by section 3(5) of the Electronic Communications Act, 36 of 2005 (‘ECA’);
3.2. the Minister’s conduct is subject to review under the doctrine of legality, and if so whether the Minister was under a duty to consult with interested parties, including the respondents, the Independent Communications Authority of South Africa (‘ICASA’) and the Universal Service and Access Agency of South Africa (‘USAASA’), before enacting it;
3.3. whether the Minister failed to consult with the respondents, ICASA, and USAASA; and
3.4. whether the encryption amendment is irrational, and ultra vires the Minister’s powers insofar as it purports to issue a binding edict.
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SUMMARY OF THE SECOND AND THIRD RESPONDENTS’ SUBMISSIONS
4. At the heart of this matter is the issue of the lawfulness of the Minister’s enactment of the encryption amendment. The encryption amendment precludes five million set top boxes (‘STBs’) to be subsidised by the State from having
‘encryption’ capabilities – which refers to the ability to decrypt encoded signals.
5. There is a debate on the papers about the merits of encryption. The debate is driven by the commercial interests of the parties. SOS and MMA however regard encryption as necessary and in the public interest. However, the matter does not turn on the merits of encryption, but on the process followed by the Minister in enacting the encryption amendment.
6. The SCA held that, correctly, that the encryption amendment differed markedly from previous iterations of the BDM Policy. It introduced a fundamentally new and different position regarding encryption. The SCA held that the Minister was obliged by s 3(5) of the ECA to consult with ICASA and USAASA, and publish the encryption amendment for comment, and the Minister’s failure to comply with s 3(5) was unlawful. The second and third respondents support this finding.
7. The second and third respondents also associate themselves with and endorse the SCA’s finding that the Minister’s conduct is subject to review under the doctrine of legality. The SCA held, correctly, that regardless of the application of s 3(5) of
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the ECA, the Minister was under a duty to consult with the respondents, ICASA USAASA and other interested parties, and that her failure to do so was unlawful.
8. The second and third respondents contend that the SCA’s findings of law and fact are not susceptible to being overturned on appeal, and that the applications for leave to appeal should be refused; alternatively that the appeals should be dismissed, with the costs of two counsel.
ESTIMATED DURATION OF THE HEARING
9. One day.
RECORD
10. The record comprises 17 volumes, is in English and should be read in its entirety.
MAX DU PLESSIS LUKE KELLY Chambers
Durban and Cape Town 22 November 2016
