e.tv (Pty) Ltd v Minister of Communications and Others

The Minister of Communications amended the Broadcasting Digital Migration Policy in March 2015 to provide that government-subsidised set-top boxes (STBs) for digital terrestrial television would not have encryption (conditional access) capability. The amendment reversed earlier policy positions that allowed or contemplated encryption capability, often at broadcasters’ cost. e.tv, supported by other broadcasters and public interest bodies, challenged the amendment on the basis that it was made without the consultation required by the Electronic Communications Act 36 of 2005 (ECA), was irrational, and was ultra vires because it purported to bind independent regulatory authorities and broadcasters. The High Court dismissed the challenge, and the appellants appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The High Court order was set aside and replaced with an order declaring clause 5.1.2(B)(a) of the Digital Migration Policy unlawful and invalid, and setting it aside.

The case affirms that ministerial policy-making under the Electronic Communications Act is constrained by statutory consultation requirements and the constitutional principle of legality. It clarifies that amendments to policies (as opposed to policy directions) must be published for comment and subjected to consultation. The judgment reinforces transparency, accountability and rationality in executive policy-making affecting broadcasting and communications.