eBotswana (Pty) Ltd v Sentech (Pty) Ltd and Others (11/16135) [2012] ZAGPJHC 231; 2013 (6) SA 327 (GSJ) (12 November 2012)

eBotswana (Pty) Ltd v Sentech (Pty) Ltd and Others (11/16135) [2012] ZAGPJHC 231; 2013 (6) SA 327 (GSJ) (12 November 2012)

The court found that Sentech owed a legal duty of care to eBotswana, a licensed broadcaster in Botswana, to secure its satellite signal and prevent pirate viewing of SABC channels in Botswana. Sentech's failure to upgrade its encryption, despite acknowledging the risk and promising remedial action, was wrongful and negligent. The widespread availability of Philibao decoders and the resulting loss of viewership and advertising revenue to eBotswana were foreseeable consequences of Sentech's conduct. The purchase of decoders by Botswana viewers did not constitute a novus actus interveniens, as it was anticipated and did not break the chain of causation. The court admitted the applicant's...

Citation
[2012] ZAGPJHC 231
Parties
Applicant: eBotswana (Pty) Ltd; Respondent: Sentech (Pty) Ltd; Respondent: South African Broadcasting Corporation Ltd; Respondent: Independent Communications Authority of South Africa
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
12 November 2012
Case Number
11/16135
Procedural Posture
Civil Application / Final Relief on Motion
Outcome
Application granted: declaratory and mandatory orders issued against Sentech; damages to be determined in subsequent enquiry.
Judges
Spilg
Legal Topics
Pure Economic Loss, Duty of Care, Satellite Broadcasting, Encryption Failure, International Comity, Market Survey Evidence
Delict Telecoms and Media Commercial and Corporate Pure Economic Loss Duty of Care Satellite Broadcasting Encryption Failure International Comity +1 more

Case Brief

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Parties

eBotswana (Pty) Ltd

Applicant

Sentech (Pty) Ltd

Respondent

South African Broadcasting Corporation Ltd

Respondent

Independent Communications Authority of South Africa

Respondent

Procedural Posture

Civil Application / Final Relief on Motion

Legal Issues

  1. 1 Whether Sentech owed a legal duty of care to eBotswana to prevent pirate viewing of SABC channels in Botswana.
  2. 2 Whether Sentech's failure to secure its satellite signal was wrongful and negligent under South African law of delict.
  3. 3 Whether the purchase of Philibao decoders by Botswana viewers constitutes a novus actus interveniens breaking the chain of causation.

Ratio Decidendi

The court found that Sentech owed a legal duty of care to eBotswana, a licensed broadcaster in Botswana, to secure its satellite signal and prevent pirate viewing of SABC channels in Botswana. Sentech's failure to upgrade its encryption, despite acknowledging the risk and promising remedial action, was wrongful and negligent. The widespread availability of Philibao decoders and the resulting loss of viewership and advertising revenue to eBotswana were foreseeable consequences of Sentech's conduct. The purchase of decoders by Botswana viewers did not constitute a novus actus interveniens, as it was anticipated and did not break the chain of causation. The court admitted the applicant's...

Court Disposition

Application granted: declaratory and mandatory orders issued against Sentech; damages to be determined in subsequent enquiry.

Orders

  • It is declared that Sentech is liable in delict for failing to take all reasonable steps necessary to prevent pirate viewing in Botswana of the SABC 1, SABC 2 and SABC 3 signal carried on the Vivid platform.
  • Sentech is directed to take all reasonable steps necessary to ensure that viewers in Botswana are prevented, within three months of the date of this order, from pirate viewing the SABC 1, SABC 2, and SABC 3 signal carried on the Vivid platform, subject to possible extension on good cause shown.