Electronic Media Network Limited and Others v e.tv (Pty) Limited and Others

South Africa embarked on a long process to migrate television broadcasting from analogue to digital terrestrial television. Over several years, successive Ministers of Communications formulated and amended the Broadcasting Digital Migration Policy, particularly concerning whether government-subsidised set top boxes should include decryption (conditional access) capabilities. Earlier policies contemplated decryption, while Minister Faith Muthambi’s 2015 policy amendment excluded decryption capabilities from subsidised set top boxes, allowing broadcasters to encrypt signals at their own cost. e.tv, a free-to-air broadcaster, objected primarily on the basis that the Minister did not consult it before adopting the amendment and challenged the policy as unlawful and irrational. The High Court dismissed e.tv’s challenge, but the Supreme Court of Appeal upheld it and set the policy aside. The Minister, SABC and Electronic Media Network Limited (M‑Net) appealed to the Constitutional Court.

Leave to appeal was granted. The appeal was upheld. The order of the Supreme Court of Appeal was set aside and replaced with an order dismissing e.tv’s appeal. e.tv, SOS Support Public Broadcasting Coalition and Media Monitoring Africa were ordered to pay the costs of Electronic Media Network Limited in the SCA and Constitutional Court, including the costs of two counsel.

The case is a leading authority on the limits of judicial review of executive policy-making in South Africa. It clarifies the application of the legality and rationality standards to national policy decisions, affirms the constitutional separation of powers, and confirms the broad authority of the executive to formulate and amend policy without undue judicial interference. It is particularly significant in the context of broadcasting regulation and digital migration.