e.tv (Pty) Ltd and Others v Minister of Communication and Digital Technologies and Others (5159/2021) [2022] ZAGPPHC 181 (28 March 2022)

REPUBLIC OF SOUTH AFRICA OR Lev SENSES A MEY CL SATE \ CS ia |) Les x SOE SOE” IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO.: 51159/2021

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Kl In the matters a), én: e.tv (PTY) LTD Applicant MEDIA MONITORING AFRICA First Intervening Applicant SOS SUPPORT PUBLIC BROADCASTING Second Intervening Applicant and MINISTER OF COMMUNICATION AND DIGITAL __ First Respondent TECHNOLOGIES THE INDEPENDENT COMMUNICATIONS Second Respondent AUTHORITY OF SOUTH AFRICA CHAIRPERSON: INDEPENDENT COMMUNICA- _ Third Respondent TION AUTHORITY OF SOUTH AFRICA

NATIONAL ASSOCIATION OF BROADCASTERS _ Fou rth Respondent SOUTH AFRICAN BROADCASTING Fifth Respondent CORPORATION SOC LIMITED VODACOM (PTY) LIMITED Sixth Respondent MOBILE TELEPHONE NETWORKS (PTY) LTD Seventh Respondent CELL C (PTY) LIMITED Eighth Respondent TELEKOM SA SOC LIMITED Ninth Respondent WIRELESS BUSINESS SOLUTIONS (PTY) LTD Tenth Respondent tla RAIN LIQUID TELECOMMUNICATIONS SOUTH Eleventh Respondent AFRICA (PTY) LIMITED SENTECH SOC LIMITED Twelfth Respondent

Judgment

MSIMANG, AJ

The Applicants and Intervening Applicants brought an application against the

Respondents for the following orders:

[1] _ That only to the extent necessary and pursuant to directions issued by the case management judge (the Honourable Mr Justice Fourie), the ordinary provisions regarding service and time periods are dispensed with and this matter is treated as one of urgency in terms of Uniform Rule 6(12),

[2] _ It is declared that, prior to the determination by the Minister of the analogue switch-off date and the date for completion of digital migration, the Minister is required to undertake a process of consultation with affected parties, including, but not limited to e.tv and the Intervening Applicants, regarding the date of the analogue switch-off date and the date for the completion of digital migration and whether appropriate measures are in place to ensure that those in South Africa who are reliant on analogue broadcasting are not deprived of their rights of access to information by means of receiving free-to-air broadcasts as a consequence of the determination by the Minister.

[3] It is declared that the digital migration process may not be completed and/or the analogue switch-off date may not be proclaimed by the Minister unless and until the Minister has complied with her constitutional obligations and public promises to provide those South Africans who are presently reliant on analogue broadcasting with alternative means to access these services on a free-to-air basis.

[4] To the extent that the Minister has taken a final decision in relation to the determination of the date for digital migration’s completion and analogue switch off, or takes such a decision prior to the determination of this application (“the determination decision”):

4.1 The determination decision is declared to be unlawful and invalid;

4.2 The determination decision is reviewed and set aside.

[5] The Minister is directed to file a Report to this Court within one (1) month of the date of this Order, or such other period as this Court should determine to be appropriate and just and equitable, setting out the steps that have been taken to ensure that:

5.1 members of the public who are currently reliant on analogue broadcasting services (including but not limited to 54% of e.tv’s viewers as measured over the period September 2020 to August 2021) are provided with access to set-top-boxes and/or reception devices to enable them to continue to be a position to access free-toair broadcasts without subscription or charge following digital migration;

5.2 adequate resourced call-centres are operational to process viewer queries sufficiently and effectively;

5.3 aneffective viewer information campaign has been conducted; and

5.4 sufficient Sentech resources have been allocated to action the switch-off of transmitters.

[6] Such further and/or alternative relief as this Court considers necessary, just and equitable.

[7] The First and Second Intervenors bought an application to be granted leave to intervene as parties in the main application, which is granted.

The History

[8] This matter raises disputed, complicated, and technical issues of fact and law, including constitutional law, and this judgement was prepared under significant time pressure due to the current deadline of 31% March 2022 for the switch-off analogue broadcasting signal, as explained below. The Court also required additional evidence from the Minister, which was only provided after hours on the first day of oral argument and responded to with further additional evidence from the applicants before the hearing commenced the next day. The Court appreciates the efforts of all partics to provide this relevant additional evidence, which confirms the complexity of the issues raised before the Court and requiring the Court’s consideration in the short time available to it. Indeed, on the eve of judgment on Sunday 27" March 2022, the applicants applied to place still further evidence before the Court for its consideration. Those applications are discussed below. The matter is about the fraught process of digital migration - a process which started in 2006. During 2005 the Minister of Communications, Dr Ivy Matsepe-Casaburri (hereinafter referred to as

Minister including all successors in title) established the Digital Migration Working Group (DMWG). The Minister in consultation with the DMWG made far reaching recommendations that paved the way for the migration of the South African Broadcasting systems from analogue to digital. The DMWG group consisted of the government, broadcasting industry, organised labour and civil society.

[9] South Africa is a member of the International Telecommunications Union (ITU). In 2006 the Regional Radiocommunication Conference (PRC-06) of the ITU resolved that all countries of Europe, Africa, Middle East as well as the Islamic Republic of Iran should migrate from analogue to digital broadcasting services by 2015. Broadcasting Digital Migration is the process of converting the broadcast of television and radio signals from analogue to digital technology. This is set to mark the beginning of the end of analogue broadcasting in these regions.

[10] The process started in earnest in 2007 through public participation which was held regarding the proposed Digital Migration policy based on the recommendations made by the DMWG and the inputs received from the public.

[11] The key benefit of digital broadcast technologies is that they use scarce national radio frequency spectrum far more efficiently than analogue technologies. This means that the existing broadcasting services can be

provided by using less of the radio frequency spectrum they currently occupy. The radio frequency spectrum freed up through the digital migration process, often referred to as “digital dividend”, has the potential not only to provide new and improved broadcasting but also to enable additional information and communication technology (ICT) services traditionally not provided in the broadcasting radio frequency band, such as mobile telephony and wireless broadband. The “digital dividend” can only be realised after the migration process is completed.

[12] Digital Migration begins with the “switch-on” of the broadcasting digital transmission signals and ends with the “switch-off” of analogue ones. Until the analogue switch-off occurs there is a period of “double illumination” during which both analogue and digital services are simultaneously broadcasted.

[13] The switch-on date’ of broadcasting digital terrestrial television (DTT) signal was originally set for the 1" November 2008 and the switch-off date for the analogue terrestrial television (ATT) signals was the 1 November 2011. However, this feat was not accomplished.

£2008 Digital Migration Policy Section 2 and 7(1) Government Notice No. 958 dated 8 September 2008

Government Gazette No. 31408

[14] The Broadcasting Digital Migration Policy of 2008 was amended by the Minister on the 17" February 2012.2 The 2012 policy provided that the government will endeavour to switch-on the digital terrestrial television signal in the last quarter of 2012. The date for the switch-off of analogue signal will be determined by the Minister after engaging with cabinet and the relevant broadcasting sector stakeholders. Section 3.3.1 of the amendment provided: “Government is committed to meet the deadline for analogue switch off by 17 June 2015 in line with the relevant ITU resolution. Taking into account the different processes which need to be completed before digital switchon, Government has decided that digital signal should be switched on by the end of the 2012/2013 financial year. A final date for the commencement of the dual ilhanination period will be announced by the Minister of Communications after engaging with Cabinet and all relevant stakeholders, including the broadcasting industry. The date for the final switch-off of the analogue signal with Cabinet and other relevant stakeholders and assessing the extent of take up by audiences of the necessary equipment to facilitate universal access to broadcasting services”.

[15] In December 2012, ICASA promulgated the Digital Migration Regulations’. The purpose of the regulations was to provide for the transition from analogue broadcasting to digital broadcasting of the existing television channels and to prescribe the conditions for assignment of channel capacity for purposes of digital migration’.

2 Government Notice No. 97 of 7 February 2012. Government Gazette 35014

3 Government Notice No.1070 Government Gazette 36000 of 14 December 2012

+ Regulation 2, read with the definition in Regulation 1.

[16] The Digital Migration Regulations required progressive dual illumination of the SABC channels, e.tv channel and M-Net channels during the dual illumination period to achieve the phased digital migration of those channels in the whole of the Republic’.

[17] The date for the commencement of the dual illumination period as well as the date of the final switch-off of the analogue signal would be published by the Minister in the Gazette®.

[18] On the 18 March 2015 the Minister published amendments to the 20087 and the 20128 policies as follows:

Para 2 Executive Summary

“The switch-on and switch-off date of the digital and analogue broadcasting digital terrestrial television signals will respectively be determined by the Minister of Communications in consultation with Cabinet”

“3.3.1 the government is committed to ensure a successful migration in South Africa. Taking into account the different processes, that need to be completed before the digital switch-on. Government has decided that the signal should be switched-on, on a date to be determined by the Minister in consultation with Cabinet. The date for the final switch-off of the analogue signal will similarly be announced by the Minister in consultation with Cabinet.

5 Regulation 3.3

© Regulation 7

7 Government Gazette No, 31408 of 8 September 2008 and the 2012

® Government Gazette No. 35014 of 17 February 2012

[19] On the Ist February 2016 the Minister gazetted the commencement of the dual illumination period for the digital broadcasting signal in South Africa: “Kindly take notice that the commencement of the dual illumination period for the digital broadcasting signal in South Africa starts on I February 2016. However, the analogue switch-off date will be announced after consultation with Cabinet”.

[20] On the 5" October 2021 the Minister issued a media statement stipulating that: 20.1. The digital migration commenced in 2006 when South Africa acceded to the ITU Regional Agreement in Geneva. 20.2. During January 2021 President Ramaphosa announced that South Africa must complete digital migration by the 31‘t March

20.3. All eligible households earning less than R3500 per month are required to register at the nearest post office in or before the 31% October 2021 to receive government assistance for STB installations.

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[21] On the 28" February 2022 the Minister determined the 31% March 2022 as the date for the final switch-off of the analogue signal and the end of dual illumination'®.