ConCourt sets aside switch-off date for move from analogue to digital broadcasting
The Constitutional Court on Tuesday declared that the announcement of March 31 2022 as the final switch-off date of the analogue signal and the end of dual illumination is unconstitutional and invalid, and set it aside.
Dual illumination refers to an interim period in which both analogue and digital terrestrial television signals are allowed to be transmitted.
The court also declared that the decision of the minister of communications and digital technologies to impose a deadline of October 31 2021 to register for set-top boxes (STBs) was unconstitutional, is invalid and is set aside.
The court made these orders as it upheld an appeal by broadcaster e.tv and two non-profit organisations, the Media Monitoring Africa and SOS Support Public Broadcasting, against the order of the high court in Pretoria.
On October 12, e.tv launched an urgent application in the high court on the basis that the analogue switch-off would permanently prevent millions of people, who had not migrated to digital television transmission and who were not in possession of STBs, from receiving free to air television transmission on their analogue television sets.
On October 5 2021, the minister announced a deadline for the set-top box (STB) registration, which was October 31 2021.
To receive digital transmissions, the old analogue television sets need the STB, which is an instrument that converts digital transmissions to analogue transmissions, so that the signal may be received on analogue television sets.
e.tv sought wide-ranging relief, including a declarator that the minister may not complete the digital migration process until she has complied with her constitutional obligations to provide STBs to people in need.
It would be just and equitable to leave the implementation of this judgment to the minister to determine the analogue switch-off date in a manner that is consistent with the prescripts of legalityJustice Nonkosi Mhlantla
The two NPOs were also admitted as intervening applicants.
Before the high court, the applicants alleged that about 2.58-million qualifying households, comprising more than 8-million people, would not have migrated by the analogue switch-off date.
The high court dismissed the application, forcing the applicants to approach the Constitutional Court.
In a unanimous judgment on Tuesday, Justice Nonkosi Mhlantla said it was not procedurally rational for the minister to set the analogue switch-off date without notice to the industry and affected parties, like MMA and SOS, to obtain their views on the matter.
“In the result, the minister’s decision not to give notice and take account of the representations received regarding the analogue switch-off date with the public or affected parties is unlawful,” Mhlantla said.
Mhlantla said there was insufficient evidence before the Constitutional Court on the steps taken by the minister between February 2021 and October 2021 to notify the public of the date planned for March 2022 and the need to register with a sense of urgency.
“It would be just and equitable to leave the implementation of this judgment to the minister to determine the analogue switch-off date in a manner that is consistent with the prescripts of legality,” Mhlantla said.