e.tv (Pty) Ltd and Others v Minister of Communications and Others (1039/2015) [2016] ZASCA 85; [2016] 3 All SA 362 (SCA); 2016 (6) SA 356 (SCA) (31 May 2016)

e.tv (Pty) Ltd and Others v Minister of Communications and Others (1039/2015) [2016] ZASCA 85; [2016] 3 All SA 362 (SCA); 2016 (6) SA 356 (SCA) (31 May 2016)

The Supreme Court of Appeal held that the Minister of Communications was required by both the Electronic Communications Act and the principle of legality to consult stakeholders and statutory bodies, specifically ICASA and USAASA, before amending the Digital Broadcasting Migration Policy. The 2015 amendment, which excluded encryption capability from subsidized set-top boxes, constituted a marked change from previous policy iterations and was enacted without proper consultation. This failure rendered the amendment irrational and procedurally unfair, as it did not achieve its stated purpose and disadvantaged free-to-air broadcasters and the public. Furthermore, the Minister acted ultra...

Citation
[2016] ZASCA 85
Parties
Appellant: e.tv (Pty) Ltd; Appellant: National Association of Manufacturers of Electronic Components (First Group); Appellant: SOS Support Public Broadcasting Coalition; Appellant: Media Monitoring Africa; Respondent: Minister of Communications; Respondent: Minister of Telecommunications and Postal Services; Respondent: Independent Communications Authority of South Africa; Respondent: Universal Service and Access Agency of South Africa; Respondent: South African Broadcasting Corporation SOC Limited; Respondent: Electronic Media Network Ltd; Respondent: Association of Community Television – SA; Respondent: South African Communications Forum; Respondent: Sentech SOC Ltd; Respondent: Cell C (Pty) Ltd; Respondent: Telkom SOC Ltd; Respondent: Tellumat (Pty) Ltd; Respondent: National Association of Manufacturers of Electronic Components (Second Group)
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
31 May 2016
Case Number
1039/2015
Procedural Posture
Civil Appeal / Appeal From the Gauteng Division of the High Court, Pretoria
Outcome
Appeal upheld; amendment declared unlawful and invalid; costs awarded to appellants.
Judges
Lewis, Saldulker, Swain, Mbha, Baartman
Legal Topics
Principle of Legality, Consultation Requirements, Ultra Vires, Digital Migration Policy, Broadcasting Regulation, Encryption of Broadcast Signals
Administrative Law Telecoms and Media Constitutional Law Principle of Legality Consultation Requirements Ultra Vires Digital Migration Policy Broadcasting Regulation +1 more

Case Brief

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Parties

e.tv (Pty) Ltd

Appellant

National Association of Manufacturers of Electronic Components (First Group)

Appellant

SOS Support Public Broadcasting Coalition

Appellant

Media Monitoring Africa

Appellant

Minister of Communications

Respondent

Minister of Telecommunications and Postal Services

Respondent

Independent Communications Authority of South Africa

Respondent

Universal Service and Access Agency of South Africa

Respondent

South African Broadcasting Corporation SOC Limited

Respondent

Electronic Media Network Ltd

Respondent

Association of Community Television – SA

Respondent

South African Communications Forum

Respondent

Sentech SOC Ltd

Respondent

Cell C (Pty) Ltd

Respondent

Telkom SOC Ltd

Respondent

Tellumat (Pty) Ltd

Respondent

National Association of Manufacturers of Electronic Components (Second Group)

Respondent

Procedural Posture

Civil Appeal / Appeal From the Gauteng Division of the High Court, Pretoria

Legal Issues

  1. 1 Whether the Minister of Communications was required to consult stakeholders and statutory bodies before amending the Digital Broadcasting Migration Policy.
  2. 2 Whether the 2015 amendment to the Digital Migration Policy was irrational and in breach of the principle of legality.
  3. 3 Whether the Minister acted ultra vires by purporting to bind regulatory authorities and broadcasters through the policy amendment.

Ratio Decidendi

The Supreme Court of Appeal held that the Minister of Communications was required by both the Electronic Communications Act and the principle of legality to consult stakeholders and statutory bodies, specifically ICASA and USAASA, before amending the Digital Broadcasting Migration Policy. The 2015 amendment, which excluded encryption capability from subsidized set-top boxes, constituted a marked change from previous policy iterations and was enacted without proper consultation. This failure rendered the amendment irrational and procedurally unfair, as it did not achieve its stated purpose and disadvantaged free-to-air broadcasters and the public. Furthermore, the Minister acted ultra...

Court Disposition

Appeal upheld; amendment declared unlawful and invalid; costs awarded to appellants.

Orders

  • The appeal is upheld with the costs of two counsel.
  • The respondents are ordered to pay the costs of the appeal jointly and severally.