CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 89/22 and CCT 92/22
Case CCT 89/22
In the matter between:
e.tv (PTY) LIMITED Applicant
and
MINISTER OF COMMUNICATIONS
AND DIGITAL TECHNOLOGIES First Respondent
INDEPENDENT COMMUNICATIONS
AUTHORITY OF SOUTH AFRICA Second Respondent
CHAIRPERSON: INDEPENDENT COMMUNICATIONS
AUTHORITY OF SOUTH AFRICA Third Respondent
NATIONAL ASSOCIATION OF BROADCASTERS Fourth Respondent
SOUTH AFRICAN BROADCASTING
CORPORATION LIMITED Fifth Respondent
VODACOM (PTY) LIMITED Sixth Respondent
MOBILE TELEPHONE NETWORKS (PTY) LIMITED Seventh Respondent
CELL C (PTY) LIMITED Eighth Respondent
TELKOM SA SOC LIMITED Ninth Respondent
WIRELESS BUSINESS SOLUTIONS (PTY) LIMITED
t/a RAIN Tenth Respondent
LIQUID TELECOMMUNICATIONS
SOUTH AFRICA (PTY) LIMITED Eleventh Respondent
SENTECH SOC LIMITED Twelfth Respondent
MEDIA MONITORING AFRICA Thirteenth Respondent
SOS SUPPORT PUBLIC BROADCASTING Fourteenth Respondent
Case CCT 92/22
In the matter between:
MEDIA MONITORING AFRICA First Applicant
SOS SUPPORT PUBLIC BROADCASTING Second Applicant
and
e.tv (PTY) LIMITED First Respondent
MINISTER OF COMMUNICATIONS
AND DIGITAL TECHNOLOGIES Second Respondent
INDEPENDENT COMMUNICATIONS
AUTHORITY OF SOUTH AFRICA Third Respondent
CHAIRPERSON: INDEPENDENT COMMUNICATIONS
AUTHORITY OF SOUTH AFRICA Fourth Respondent
NATIONAL ASSOCIATION OF BROADCASTERS Fifth Respondent
SOUTH AFRICAN BROADCASTING
CORPORATION LIMITED Sixth Respondent
VODACOM (PTY) LIMITED Seventh Respondent
MOBILE TELEPHONE NETWORKS (PTY) LIMITED Eighth Respondent
CELL C (PTY) LIMITED Ninth Respondent
TELKOM SA SOC LIMITED Tenth Respondent
WIRELESS BUSINESS SOLUTIONS (PTY) LIMITED
t/a RAIN Eleventh Respondent
LIQUID TELECOMMUNICATIONS
SOUTH AFRICA (PTY) LIMITED Twelfth Respondent
SENTECH SOC LIMITED Thirteenth Respondent
Neutral citation: e.tv (Pty) Limited v Minister of Com munications and Digital
Technologies and Others; Media Monitoring Africa and Another v
e.tv (Pty) Limited and Others [2022] ZACC 22
Coram: Kollapen J, Majiedt J, Mathopo J, Mhlantla J, Mlambo AJ,
Theron J, Tshiqi J and Unterhalter AJ
Judgment: Mhlantla J (unanimous)
Heard on: 20 May 2022
Decided on: 28 June 2022
Summary: Analogue switch -off date — duty to give notice — procedural
rationality
Remedy — review of Minister’s decision — separation of
powers — substitution not appropriate — setting aside of
Minister’s decision
ORDER
On direct appeal from the High Court of South Africa, Gauteng Division, Pretoria:
1. Leave to appeal directly to this Court on an urgent basis is granted.
2. The appeal is upheld.
3. The order of the High Court is set aside and replaced with the following:
“(a) It is declared that the announcement of 31 March 2022 as the final
switch-off date of the analogue signal and the end of dual
illumination issued by the Minister of Communications and Digital
Technology on 28 February 2022 in terms of the Broadcasting
4
Digital Migration Policy (as amended), is unconstitutional, invalid
and is set aside.
(b) It is declared that the Minister’s decision to impose a deadline of
31 October 2021 to register for set -top boxes is unconstitutional,
invalid and is set aside.
(c) The Minister must pay the costs of the applicants, including the
costs of two counsel where so employed.”
4. The Minister must pay the applicants’ costs in this Court, including the
costs of two counsel.
JUDGMENT
MHLANTLA J (Kollapen J, Majiedt J, Mathopo J, Mlambo AJ, Theron J, Tshiqi J and
Unterhalter AJ concurring):
Introduction
[1] This matter concerns the process of television migration from analogue signal to
digital signal. Before 1976, South Africans relied on the radio network for information,
news and entertainment as there was no television broadcasting. This situation changed
in 1976 with the introduction of television broadcasting, which was accessed through
analogue television sets. The broadcasting signal in an analogue television set is
received directly from an aerial or antenna and transmits through analogue signal. With
the advent of technology, digital technologies were introduced in various aspects and
areas of communication, including radio and television broadcasting.
[2] Digital migration is the process through which the broadcasting of television and
radio is converted from analogue to digital technologies and frequency signals. Both
frequency signals are found on the electromagnetic spectrum (spectrum) that is used to
MHLANTLA J
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transmit electronic communications and broadcasting. However, analogue technologies
are only able to receive and communicate analogue signals, while digital technologies
receive and communicate only digital signals. As a result, analogue television sets are
unable to display information as received from digital frequencies without a device
capable of converting digital transmissions to analogue transmissions . While the
country migrates from analogue to digital frequencies, there is a “dual illumination”
period. During this time, both analogue and digital transmissions are used; and continue
until such a time when the analogue transmission is completely switched off, and the
digital transmission is completely switched on.1
[3] On 4 April 2022, two urgent applications for leave to appeal directly to this Court
against a judgment and order of the High Co urt of South Africa, Gauteng Division,
Pretoria (High Court) were lodged .2 As both concerned the same subject matter, they
were consolidated and heard together. T he applications concern the applicants’
dissatisfaction with an order of the High Court that permits the Minister of
Communications and Digital Technologies (Minister) to complete the digital migration
process – moving from analogue to digital broadcasting – on 30 June 2022. The
analogue switch-off was initially scheduled by the Minister for 31 March 2022, but that
date was changed by the order of the High Court to 30 June 2022.
[4] The applicant in the first matter, under case number CCT 89/22, is e.tv (Pty)
Limited (e.tv), South Africa’s biggest independent free-to-air television broadcaster and
the only non -state broadcaster of free-to-air television news in South Africa. The
applicants in the second matter, under case number CCT 92/22, are two non -profit
organisations, Media Monitoring Africa (MMA) and SOS Support Public Broadcasting
(SOS). In the High Court, MMA and SOS were granted leave to intervene as
1 It should be noted that, to date, the provinces of Free State, Northern Cape, North West, Mpumalanga and
Limpopo have migrated from analogue to digital transmission. Thus, this dispute is centred around the digital
migration of the remaining four provinces, namely, KwaZulu-Natal, Eastern Cape, Western Cape and Gauteng.
2 e.tv (Pty) Ltd v Minister of Communications and Digital Technologies , unreported judgment of the High Court
of South Africa, Gauteng Division, Pretoria, Case No 51159/2021 (28 March 2022) (High Court judgment).
MHLANTLA J
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co-applicants. Where I refer to the “applicants” in this judgment, it is to e.tv, MMA
and SOS collectively.
[5] Not all the respondents cited in these applications participated in the proceedings
before this Court. Those who participated were the Minister,3 the Independent
Communications Authority of South Africa (ICASA); 4 the Chairperson of ICASA ;5
Vodacom (Pty) Limite d (Vodacom);6 and Sentech S OC Limited7 (Sentech). The
Minister is the custodi an of the process of digital migration and responsible for the
analogue switch-off as well as all the processes preceding and succeeding it. ICASA
was established in terms of section 3(1) of the Independent Communications Authority
of South Africa Act ,8 and is the regulatory body empowered to release the available
spectrum for use by the Mobile Network Operators (MNOs). Vodacom is an MNO in
South Africa. Sentech is a state -owned company and a leading provider of electronic
communications network services to the country’s broadcasting and communication s
industry.
Background
[6] Although this matter comes to this Court in the year 2022, the process of digital
migration can be traced back to the year 2006; and, in the specific case of South Africa,
to 2007. South Africa resumed its membership of the International Telecommunication
Union (ITU) in 1994. 9 In 2006, the ITU held its Regional Radio Communication
Conference. Soon after this Conference, the government of South Africa began to
formulate what would b ecome its first Broadcasting Digital Migration Policy
3 First respondent in CCT 89/22 and second respondent in CCT 92/22.
4 Second respondent in CCT 89/22 and third respondent in CCT 92/22.
5 Third respondent in CCT 89/22 and fourth respondent in CCT 92/22.
6 Sixth respondent in CCT 89/22 and seventh respondent in CCT 92/22.
7 Twelfth respondent in CCT 89/22 and thirteenth respondent in CCT 92/22.
8 13 of 2000.
9 South Africa became a member of the ITU in 1910. However, in 1965 South Africa was excluded from all
meetings due to the c ontinued implementation of its apartheid policies. Upon the abolition of apartheid,
South Africa once again became an active member of the ITU in 1994.
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(BDM Policy), for which a public participation process was held in March and
April 2007. This Policy was published in the Government Gazette in September 2008.10
[7] In 2007, Cabinet approved the dual illumination period, which was scheduled to
commence on 1 November 2008. However, the government missed this deadline. In
December 2012, the Digital Migration Regulations 11 were published in the
Government Gazette and the commencement date for dual illumination was changed to
1 February 2016. While the BDM Policy had intended for full migration to be
completed by November 2011, this was also not achieved. In the result, the
BDM Policy was amended in 2012. 12 In terms of the 2012 amendment, government
was set to complete digital migration by 17 June 2015, but this, too, did not materialise.
As a result, the BDM Policy was further amended and published on 18 March 2015. 13
In terms of this amendment, the digital switch -on and analogue switch -off dates were
“to be determined by the Minister of Communications in consultation with Cabinet”.
[8] Modern television sets have a built -in digital tuner that allows them t o receive
digital transmissions . In order to recei ve digital transmissions, the old analogue
television sets need a set -top box (STB), which is an instrument that converts digital
transmissions to analogue transmissions, so that the signal may be received on analogue
television sets. In the result, it is stated in the BDM Policy, and all its amendments, that
these STBs would be made “affordable and available to the poorest TV -owning
households”, which had to register if they wished to receive state-sponsored STBs.
Registration for the STBs was opened in 2015 and there was no closing date for
registration.
10 Broadcasting Digital Migration Policy, GN 958 GG 31408, 8 September 2008 (2008 BDM Policy).
11 Digital Migration Regulations, 2012, GN 1070 GG 36000, 14 December 2012 (Regulations).
12 Amendment of the Broadcasting Digital Migration Policy, GN 97 GG 35014, 7 February 2012
(2012 BDM Policy).
13 Amendment of the Broadcasting Digital Migration Policy, GN 232 GG 38583, 18 March 2015
(2015 BDM Policy).
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[9] The procurement of STBs began in 2015 and between 2016 and 2019, the
Universal Service and Access Agency of South Africa (USAASA) procured
1.45 million STBs.14
[10] On 11 February 2021, and during the State of the Nation Address, the President
of the Republic of South Africa announced that digital migration would be completed
by the end of March 2022. On 29 September 2021, Cabinet approved the Minister’s
analogue switch-off implementation plan, in terms of which the analogue switch -off
would occur by the end of March 2022. It was in accordance with this plan that
the Minister eventually determined the analogue switch-off date to be 31 March 2022.15
[11] On 5 October 2021, for the first time, the Minister announced a deadline for the
STB registration, which was 31 October 2021 . For those who met the deadline, the
STBs would be installed by the analogue switch-off date. However, for all those who
registered after 31 October 2021, the STBs would be installed three to six months after
analogue switch-off. This meant that those who failed to register by 31 October 2021
or registered thereafter would be disconnected from receiving analogue transmission.
As a result, their analogue television sets would no longer be operational and they would
not receive television services during that period.
[12] In December 2021, ICASA gave notice of its intention to hold an auction of
portions of the broadcasting spectrum, referred to as the “ digital dividend ”. In
March 2022, ICASA proceeded with the auction of the spectrum. ICASA provisionally
assigned portions of the digital spectrum to each successful bidder, including Vodacom.
The provisional assignment ends on 30 June 2022 and on 1 July 2022, the permanent
spectrum regimes will commence.
14 USAASA is a state-owned entity established in terms of section 80 of the Electronic Communications Act 1 of
2014 (ECA) whose mandate is to ensure universal access to information and communications technology services.
15 The analogue swit ch-off date was published in the Government Gazette, GN 1804 GG 45984,
28 February 2022.
MHLANTLA J
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[13] After the analogue switch -off date, broadcasters will not be able to transmit on
the spectrum originally assigned to analogue, which was auctioned by ICASA.
Broadcasters are therefore required to switch off their transmitters. The South African
Broadcasting Corporation Limited (SABC) has already switched off some of its
analogue transmitters and has migrated to digital. M -Net has switched off 84
transmitters and has also migrated to digital. e.tv has switched off only four out of 95
transmitters and is still broadcasting on analogue.
Litigation history
[14] On 12 October 2021, 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. It sought wide ranging relief: a declarator that the Minister may not complete the
digital migration process until she has complied with her constitutional obligations to
provide STBs to persons in need; a declarator that the Minister must consult with
affected parties before completing digital migration; an order reviewing and setting
aside a final decision, if one is taken, in relation to the final date for analogue switch-off;
and that the Minister must report to the High Court on steps taken to supply STBs and
consult with affected parties. MMA and SOS applied and were admitted as intervening
applicants.
[15] Before the High Court, the applicants argued that the digital migration process
was tainted as it violated the rights enshrined in the Bill of Rights, particularly the right
to receive social assistance under section 27 and freedom of expression as contained in
section 16 of the Constitution . The applicants contended that the government had
undertaken to assist approximately 3 .75 million qualifying households in the digital
migration process by providing STBs and install ing these before the analogue
switch-off. However, the applicants alleged that approximately 2.58 million qualifying
households, compris ing of over 8 million people, would not have migrated by the
analogue switch-off date.
MHLANTLA J
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[16] The applicants further argued that the Minister had a duty to consult with various
interested parties and stakeholders, inclusive of the applicants, before announcing the
analogue switch-off date. They invoked this Court’s decision in KwaZulu-Natal Joint
Liaison Committee,16 and contended that the import of this decision is that a state organ
will be bound by its public promises . The applicants submitted that the Minister, and
the government by extension, were bound by the undertaking to provide and install
STBs, so as to ensure that no one is left behind when the analogue switch -off is
implemented and could not renege from that promise as doing so “would be legally and
constitutionally unconscionable”.
[17] The High Court relied upon the minority judgme nt of KwaZulu-Natal Joint
Liaison Committee and held that it “is more in line with the position in our law of
contract and the law of property which recognises various rights and obligations”.17 To
determine the nature and extent of the promise to establish if any rights and obligations
were created, the High Court considered the 2008 BDM Policy, the 2012 BDM Policy,
the 2015 BDM Policy and the statistics before it. It accepted that, out of 14 million
television sets in South Africa, 10.5 million were compliant with digital transmission
and 3.75 million were analogue. 18 It held, however, that no evidence was adduced to
indicate the financial status of the households still using analogue television sets, for
purposes of determining whether they qualify for the STBs.19
[18] The High Court held that the Minister did not adduce evidence to show what
remained to be achieved before the March 2022 analogue switch-off date,20 and noted
the undertakings by the state to install 507 251 STBs by the end of March to cater for
the households which qualify and had registered but had not been supplied with STB s.
16 KwaZulu-Natal Joint Liaison Committee v MEC for Education, KwaZulu-Natal [2013] ZACC 10; 2013 (4) SA
262 (CC); 2013 (6) BCLR 615 (CC).
17 High Court judgment above n 2 at para 34.
18 Id at para 49.
19 Id at para 50.
20 Id at para 53.
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The Court , whilst mindful of the undertaking, held that it had to consid er the slow
progress by the state thus far. The High Court further stated:
“It would be unconscionable for any of these households to continue to be left behind
prior to [analogue switch-off] and there is a significant probability of this happening
given the slow installation progress made thus far, especially in the provinces that have
already switched off”.21
[19] Regarding the households which have not qualified, the High Court held that the
applicants failed to provide the Court with any statistics that these households would
qualify for STBs because neither the state nor the applicants have conducted any study
to establish whether they qualify.22 The High Court concluded that the offer by the state
to register for the STBs is analogous to the offer and acceptance as stated by the minority
in KwaZulu-Natal Joint Liaison Committee; therefore, this is binding on the state.23 The
High Court further held that those households which did not register do not qualify for
STBs, and that because this was an undetermined number of persons who would be
affected by the analogue switch-off, “it would be unreasonable to allow for a situation
where this unknown variable is allowed to hold up a process that will eventually benefit
all citizens”.24
[20] With respect to the applicants’ argument that the analogue switch -off will
infringe the right to freedom of expression of many people, the High Court held that the
state has done enough to provide STBs for all qualifying registered households. 25 On
the duty to consult, the High Court held that the applicants had failed to show that a
further consultation process with them would have ensured a rational, reasonable and
21 Id at para 53.
22 Id at para 54.
23 Id at para 55.
24 Id at paras 56 and 58.
25 Id at para 60.
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lawful digital migration process.26 It further held that the state only has a duty to consult
where it would be irrational to take the decision without consultation with industry
experts.27 The High Court thus dismissed the application.
[21] The final aspect cons idered by the High Court was an application in terms of
rule 6(5)(e) of the Uniform Rules of Court for the admission of a statement by
the SABC. This application was brought on the eve of the hand down of the judgment.
The statement sought to be admitted had been issued on 25 March 2022, after the
hearing in the High Court, in which the SABC expressed some concerns about the
analogue switch-off date and the process leading up to the finalisation of the digital
migration.28 The High Court dismissed the application on the basis that it would be
prejudicial to admit the statement as the respondents would not be afforded an
opportunity to respond to the statement. It said, “in light of the [High] Court’s order,
this further evidence is not required”.29
[22] Notwithstanding the dismissal of the application, the High Court extended the
date for analogue switch -off to 30 June 2022. It said that this was t o ensure that the
households which have registered for STBs would access them before the analogue
switch-off date. The Court did not explain how the extension period was determined.
On costs, the High Court ordered e.tv to pay 50% of the first respondent’s costs and pay
the full costs of the second, third and sixth respondents. The Court held that the
Biowatch30 principle applied in respect of MMA and SOS , and thus made no order as
to costs.
26 Id at para 61.
27 Id at para 62.
28 On 5 April 2022, the SABC issued another statement which said that the statement of 25 March 2022 was not
intended to be used by the applicants in the ongoing litigation. It further said that the statement did not exhaust
agreed procedures between the SABC and the Minister, and as such the SABC apologised to the Minister for the
oversight.
29 High Court judgment above n 2 at para 70.
30 Biowatch Trust v Registrar Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014
(CC).
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In this Court
[23] Aggrieved by the decision of the High Court, the applicants have now
approached this Court for direct leave to appeal on an urgent basis.
Issues
[24] The issues for determination are as follows:
(a) Do these applications engage this Court’s jurisdiction?
(b) Should leave to appeal directly to this Court on an urgent basis be
granted?
(c) If the answers to (a) and (b) are in the affirmative, then the following
issues arise:
(i) Whether the rights under section s 16 and 27 of the Constitution
have been infringed.
(ii) The nature of the Minister’s power to determine the analogue
switch-off date.
(iii) If the Minister’s power is an executive one, did the Minister act
rationally? If the power is administrative in nature, did the
Minister adequately consult, as required by the Promotion of
Administrative Justice Act31 (PAJA) before taking the decision to
determine the analogue switch-off date?
(iv) What is the appropriate remedy?
(v) Did the High Court err in its finding that the Biowatch principle
does not apply to e.tv; therefore, mulcting e.tv in costs?
31 3 of 2000.
MHLANTLA J
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Analysis
Jurisdiction
[25] This Court has jurisdiction to decide constitutional matters and any other matter
that raises an arguable point of law of general public importance that ought to be
considered by it.32 This matter concerns a review of the Minister’s actions and a
determination whether the Minister acted within the bounds of the Constitution.
The Minister does not dispute that this Court has jurisdiction to entertain the matter.
This is clearly a constitutional matter; therefore, t he jurisdiction of this Court is
engaged.
Direct appeal and urgency
[26] This Court has a discretion to determine whether direct leave to appeal to it
should be granted. 33 This discretion entails an interest s of justice enquiry. The
applicants submit that a direct appeal is warranted because: (a) the appeal involves only
constitutional issues and there are no material disputes of fact; (b) this matter does not
concern or call for the development of the common law ; (c) the appeal raises critical
issues of public and constitutional significance; (d) the matter is urgent as the analogue
switch-off date was determined by the High Court to be 30 June 2022; (e) the
applications have strong prospects of success; (f) there is an urgent need to bring finality
to this matter; and (g) although the Supreme Court o f Appeal will be bypassed,
this Court has the benefit of a judgment from the Full Court.
[27] The urgency of this matter is not in dispute. The Minister agrees that this matter
is urgent due to fact that the switch-off date of 30 June 2022 is imminent and because
ICASA has completed the auction of the spectrum. The spectrum ought to be available
from 1 July 2022. I agree with the parties that this matter is without a doubt urgent.
The extended date of 30 June 2022 looms and does not provide sufficie nt time for the
32 Section 167(3)(b) of the Constitution.
33 Phillips v National Director of Public Prosecutions [2005] ZACC 15; 2006 (1) SA 505 (CC); 2006 (2) BCLR
274 (CC) at para 30.
MHLANTLA J
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matter to first be determined by the Supreme Court of Appeal. Additionally, this is a
constitutional matter and, given the wide public impact the judgment will have, it is in
the interest s of justice that direct leave to appeal on an urgen t basis be granted. I t
remains for me to consider the merits of the appeal.
Merits
[28] I commence with a consideration of the nature of the Minister’s powers and
whether she acted within the purview of legality.
Nature of the Minister’s power
[29] The applicants argue that the Minister’s power to determine the deadline for the
STB registration and the analogue switch -off date constitutes administrative action.
According to them, t he Minister had a duty in terms of section 6 of PAJA to consult
with affected parti es before determining the deadline for the STB registration and the
analogue switch-off date. In the event that the decisions were not administrative action,
but rather taken in terms of policy, the applicants argue that there was still a duty on
the Minister to consult in terms of section 3(5) of the ECA.
[30] Before considering these submissions, it is necessary to determine whether the
nature of the Minister’s powers constitutes administrative or executive action.
[31] The Minister argues that her powers to determine the analogue switch-off date
and the parameters of the digital migration process are quintessentially executive
powers. In her answering affidavit filed in the High Court, the Minister stated that
“[t]he Regulations empower the Minister to determine the analogue switch-off date”.
Regulation 3(1) states that “[t]he date for the commencement of the dual illumination
period as well as the date for the final switch-off of the analogue signal will be published
by the Minister in the Gazette”. However, when the Minister published the analogue
switch-off date of 31 March 2022 in the Government Gazette on 28 February 2022, it
was done under paragraph 3.3.1 of the BDM Policy. The Minister , therefore,
MHLANTLA J
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understood her power to determine the analogue switch-off date to be in terms of the
BDM Policy. The Minister submits that she derives her power to make policies relating
to information, communications and technology, such as the BDM Policy, in terms of
section 3(1) of the ECA.34
[32] The Minister argues that the question concerning the nature of her powers was
settled by this Court in Electronic Media Network Limited.35 In that case, this Court
had to consider whether the Minister had the power to effect an amendment to the
2008 BDM Policy and whether the necessary consultations under the ECA were
undertaken before the policy was adopted.
[33] I do not understand Electronic Media Network Limited to have decided this issue
as argued by the Minister. The question before th e Court was “[whether the Minister]
34 Section 3(1) of the ECA provides:
“The Minister may make policies on matters of national policy applicable to the [information,
communications and technology] sector, consistent with the objects of this Act and of the related
legislation in relation to—
(a) the radio frequency spectrum;
(b) universal service and access policy;
(c) the Republic’s obligations and undertakings under bilateral, multilateral or
international treaties and conventions, including technical standards and frequency
matters;
(d) the application of new technologies pertaining to electronic communications services,
broadcasting services and electronic communications network services;
(e) guidelines for the determ ination by the Authority of licence fees and spectrum fees
associated with the award of the licences contemplated in Chapter 3 and Chapter 5,
including incentives that may apply to individual licences where the applicant makes
binding commitments to constr uct electronic communications networks and provide
electronic communications services in rural and under-serviced areas of the Republic;
(f) the promotion of universal service and electronic communications services in
under-serviced areas;
(g) mechanisms t o promote the participation of [small enterprises] in the [information,
communications and technology] sector;
(h) the control, direction and role of state -owned enterprises subject to the Broadcasting
Act and the Companies Act, 1973 (Act No. 61 of 1973); and
(i) any other policy which may be necessary for the application of this Act or the related
legislation.”
35 Electronic Media Network Limited v e.tv (Pty) Limited [2017] ZACC 17; 2017 (9) BCLR 1108 (CC).
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had the legal authority to make the policy -determination now being challenged or
exceeded her powers”. 36 This Court, therefore, had to consider whether the Minister
exceeded the bounds of legality when making the specific policy. This Court did not
consider whether the nature of the Minister’s powers is executive or administrative – it
was decided on the assumption that the adoption of the policy was executive action. In
the current matters before this Court, there is a dispute about the nature of the Minister’s
powers – that is, whether it is executive or administrative. In my view, the Minister’s
reliance on Electronic Media Network Limited is therefore misplaced. Nonetheless, I
agree with the Minister that the decision to determine the analogue switch-off date was
an exercise of executive power, for the reasons set out below.
[34] In Motau,37 this Court held that when considering whether it is appropriate to
subject the exercise of public power to scrutiny under a review, it is necessary to
consider whether such scrutiny is appropriate given that the power bears on policy
matters, to which courts should show judicial deference.38 When determining whether
the decision of the Minister was an executive function or administrative act ion, it is
useful to consider what this Court held in SARFU:39
“Determining whether an action should be characterised as the implementation of
legislation or the formulation of policy may be difficult. It will . . . depend primarily
upon the nature of the power. A series of considerations may be relevant to deciding
on which side of the line a particular action falls. The source of the power, though not
necessarily decisive, is a relevant factor. So too is the nature of the power, its subject
matter, whether it involves the exercise of a public duty, and how closely it is related
on the one hand to policy matters, which are not administrative, and on the other to the
implementation of legislation, which is.”40
36 Id at para 20.1.
37 Minister of Defence and Military Veterans v Motau [2014] ZACC 18; 2014 (5) SA 69 (CC) ; 2014 (8) BCLR
930 (CC).
38 Id at para 43.
39 President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 11; 2000 (1) SA
1 (CC); 1999 (10) BCLR 1059 (CC).
40 Id at para 143.
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[35] While the Minister understood the source of her power to be the BDM Policy,
the applicants contend that the Regulations confer the necessary power on the Minister
to determine the analogue switch-off. The Regulations merely state that the analogue
switch-off date will be published by the Minister. It does not confer the power on the
Minister to determine the analogue switch-off date. Similarly, the BDM Policy states
that the Minister will announce the analogue switch -off date after engaging with
Cabinet. The Regulations and the BDM Policy, therefore, presuppose that the Minister
has the necessary power to determine the analogue switch-off date. In my view, this
power is located within the Minister’s original constitutional policy -making powers,
which is section 85(2)(c) of the Constitution. This section empowers the Minister to
develop and implement national policy – this much was undisputed.
[36] The determination of the analogue switch-off date is the implementation of the
BDM Policy by the Minister. In my view, the Minister’s exercise of power wh en
determining the analogue switch -off date is thus executive in nature. Appropriate
judicial deference should therefore be shown by this Court. The question is then
whether the Minister exercised this power rationally and lawfully.
[37] The classification of power as an executive function does not mean that there are
no constraints placed upon it. 41 In Democratic Alliance ,42 this Court held that “[i]t
cannot be suggested that a decision that would be irrational in an administrative law
setting might mutate i nto a rational decision if the decision being evaluated was an
executive one”.43
41 SARFU above n 39 at para 148.
42 Democratic Alliance v President of the Republic of South Africa [2012] ZACC 24; 2013 (1) SA 248 (CC); 2012
(12) BCLR 1297 (CC).
43 Id at para 44.
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[38] In the Minister’s submissions , Motau is used as authority to argue that the
decision the Minister took to determine the analogue switch-off date is a policy decision
or closel y connected to or “adjunct to her executive policy formulation function”. 44
During the hearing, counsel for the Minister was asked whether any consultations were
undertaken before determining a cut -off date to register for the installation of STBs
before t he analogue switch -off date . Counsel argued that consultation was not
necessary as the Minister was merely exercising an “adjunct” power to the original
policy power – which is to determine the analogue switch-off date. On the strength of
the Minister’s own submissions and reliance on Motau, an “adjunct” power is still an
executive power which, at the bare minimum, must be rational ly exercised . The
decision to determine the 31 October 2021 deadline for registration was also the
implementation of policy a s an adjunct power to the Minister’s policy function to
determine the analogue switch-off date.
[39] Accordingly, there are two relevant decisions which must pass constitutional
muster: (a) the decision to determine the analogue switch-off date; and (b) the decision
to determine 31 October 2021 as the deadline to register for STBs and to be supplied
with such STBs before the analogue switch-off date.
Legality
[40] In Affordable Medicines Trust,45 this Court described the principle of legality as
a constitutional control of the exercise of public power when it held:
“The exercise of public power must therefore comply with the Constitution, which is
the supreme law, and the doctrine of legality, which is part of that law. The doctrine
of legality, which is an incident of the rule of law, is one of the constitutional controls
through which the exercise of public power is regulated by the Constitution.”46
44 Motau above n 37 at para 48.
45 Affordable Medicines Trust v Minister of Health [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529
(CC).
46 Id at para 49.
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[41] In Pharmaceutical Manufacturers ,47 this Court held that “ [r]ationality in this
sense is the minimum threshold requirement applicable to the exercise of all public
power by members of the executive and other functionaries”. 48 This Court went on to
say that when considering rationality , it is not up to the Court to substitute its opinion
as to what would be appropriate because—
“[a]s long as the purpose sought to be achieved by the exercise of public power is within
the authority of the functionary, and as long as the functionary’s decision, viewed
objectively, is rational, a court cannot interfere with the decision simply because it
disagrees with it, or considers that the power was exercised inappropriately”.49
[42] In Albutt,50 this Court said:
“Courts may not interfere with the means selected simply because they do not like
them, or because there are other more appropriate means that could have been selected
. . . . What must be stressed is that the purpose of the enquiry is to determine not
whether there are other means that could have been used, but whether the means
selected are rationally related to the objective sought to be achieved.”51
[43] Counsel for MMA and SOS argue s that this Court can avoid the rationality
exercise through the lens of Albutt by simply considering whether the Minister complied
with her duty to consult in terms of section 3(5) of the ECA.52 I do not agree.
47 Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the Republic of South Africa
[2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC).
48 Id at para 90.
49 Id.
50 Albutt v Centre for the Study of Violence and Reconciliation [2010] ZACC 4; 2010 (3) SA 293 (CC); 2010 (5)
BCLR 391 (CC).
51 Id at para 51.
52 The section provides:
“(5) When issuing a policy under subsection (1) or a policy direction under subsection (2)
the Minister—
(a) must consult the Authority or the Agency, as the case may be; and
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[44] The Minister only published the official analogue switch -off date in the
Government Gazette on 28 February 2022 . However, this decision was taken earlier,
with Cabinet approving the analogue switch-off date in September 2021. The analogue
switch-off date was, therefore, determined first, and only then did the Minister
determine the deadline for registration of STBs. The STB registration process and the
deadline for registration form part of the process leading up to the analogue switch-off.
These were part of the procedure required to execute the decision to implement
analogue switch-off by 31 March 2022. This, in my view, is different to the making of
policy, this is a decision concerning the process of implementing the policy. Section 3
of the ECA regulates ministerial policies and policy directions. The implementation of
policy is distinct from either ministerial policies or policy directions and hence does not
fall within section 3 of the ECA. The implementation of policy must nevertheless still
measure up to the rationality standard set by this Court in Albutt and other procedural
rationality jurisprudence.
[45] e.tv argues that the Minister had a duty to consult the public, including the
applicants, before determining both the STB registr ation deadline and the analogue
switch-off date. e.tv submits that, in two previous applications, the High Court
confirmed that the analogue switch -off date “shall be made after a process of
engagement with the affected parties ha [d] been concluded”.53 According to e.tv, the
High Court failed to consider whether the Minister had a duty to consult before
determining the STB registration deadline and, further, the High Court only decided the
(b) must, in order to obtain the views of interested persons, publish the text of
such policy or policy direction by notice in the Gazette—
(i) declaring his or her intention to issue the policy or policy direction;
(ii) inviting interested persons to submit written submissions in relation
to the policy or policy direction in the manner specified in such
notice in not less than 30 days from the date of the notice;
(c) must publish a final version of the policy or policy direction in the Gazette.”
53 Minister of Telecommunications and Postal Services v Acting Chair, Independent Communications Authority
of South Africa 2016 JDR 1848 (GP) at para 58 and Telkom SA SOC Limited v Independent Communications
Authority of South Africa , unreported judg ment of the High Court of South Africa, Gauteng Division, Pretoria,
Case No 66778/2020 (8 March 2021) at para 68.
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question whether the Minister had a duty to consult before determining the analogue
switch-off date. e.tv submits that the High Court incorrectly accepted that since the
decision was based on policy, there was no duty to consult. It contends that the process
of consultation regarding the analogue switch-off was “at best, a sham in respect of e.tv,
and non-existent in relation to the public and groups that represent the public, like MMA
and SOS”.
[46] In her answering affidavit, the Minister denied that she was requir ed to
“undertake consultations or take her decision [to determine the analogue switch -off
date] in a procedurally fair or procedurally rational manner in terms of the principle of
legality”. However, although she was not required to, she continued to consult with
affected parties regarding “aspects that need[ed] to be considered for the completion of
the digital migration process”.
[47] In her submissions, the Minister continue s to hold the stance that she was not
required to consult regarding the determination of the analogue switch-off. She submits
that “there is no general requirement for [her] to consult with the public on the exercise
of her executive powers as a matter of the principle of legality”. Moreover, the Minister
submits that the BDM Policy doe s not contemplate that she should consult affected
parties regarding the final analogue switch-off date; instead, she is only obligated to
consult with Cabinet. The Minister also submits, that although she was not required to
do so, she consulted with e.tv and other broadcasters regarding the analogue switch-off
plan and date. And, the Minister highlights, e.tv was offered numerous opportunities to
make submissions on the proposed analogue switch-off date and plan. It bears noting,
however, that there is no mention of similar consultations with MMA, SOS or other
similar interested groups.
[48] The Minister refers to several consultations that took place leading up to the 2008
BDM Policy to illustrate that proper consultations were undertaken before the analogue
switch-off date was determined. In my view, this argument is misplaced. The
consultations that took place during the preparation of the BDM Policy are not
MHLANTLA J
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equivalent to consultations to determine the analogue switch-off date. By their very
nature, consultations to determine the analogue switch-off date would involve different
aspects than consu ltations in preparation of the BDM Policy. For example, critical
questions raised in consultations before the analogue switch-off date would have sought
to determine t he number of persons who qualify to receive STBs, who would like to
register for STBs before the analogue switch-off date and how long it would take, at the
current rate of installation, for all the households that wish to register to receive STBs
to be supplied with such.
[49] The principle of legality has been extensively developed in our jurisprudence
and is of application here too. This Court has stated that, while determining whether a
functionary exercised her powers correctly, used to be a question answered in common
law, the question is now answered under the Constitution and in terms of the principle
of legality.54 This position was confirmed by this Court recently in Notyawa,55 where
this Court said that “[t]he Constitution dema nds that all government decisions must
comply with it, including the principle of legality which forms part of the rule of law,
and which is one of our constitutional founding values”.56
[50] In Fedsure,57 this Court held that the principle of legality, as covered by the rule
of law, “is generally understood to be a fundamental principle of constitutional law”. 58
And, although the Fedsure decision was relying on and referring to the
interim Constitution, this principle was transposed to the era of the final Constitution in
Pharmaceutical Manufacturers.59
54 Affordable Medicines Trust above n 45 at para 50.
55 Notyawa v Makana Municipality [2019] ZACC 43; (2020) 41 ILJ 1069 (CC); 2020 (2) BCLR 136 (CC).
56 Id at para 38.
57 Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council [1998] ZACC 17; 1999
(1) SA 374 (CC); 1998 (12) BCLR 1458 (CC).
58 Id at para 56. See also: State Information Technology Agency SOC Limited v Gijima Holdings (Pty) Limited
[2017] ZACC 40; 2018 (2) SA 23 (CC) ; 2018 (2) BCLR 240 (CC ) ( Gijima) at para 386 and Buffalo City
Metropolitan Municipality v Asla Construction (Pty) Ltd [2019] ZACC 15; 2019 (4) SA 331 (CC); 2019 (6) BCLR
661 (CC) (Buffalo City) at para 36, which relied on and applied the Fedsure principle.
59 In Pharmaceutical Manufacturers above n 47 at para 17, Court referred to the finding in Fedsure, but in relation
to the final Constitution
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[51] With reference to this matter, and in the light of the Minister’s submissions that
her decision was an executive one made in terms of section 85 of the Cons titution, her
decision in relation to the analogue switch-off date must comply with the Constitution
in order to be lawful. I emphasise, l awfulness demands compliance with the
Constitution. It cannot be denied that switching off analogue transmission is an integral
part of digital migration; more than being connected to it, it is part of it. Therefore,
digital migration policy discussions must include an opportunity where the affected
parties are given notice and afforded an opportunity to make representations on the
analogue switch-off date.
[52] The decision concerning the analogue switch -off date is not a mechanical
determination as the facts of this case show. Important interests are at stake. Following
Albutt, 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.
[53] In the result, the Minister’s decision not to give notice and take account of the
representations rece ived regarding the analogue switch -off date with the public or
affected parties is unlawful.
[54] The applicants made further submissions to this Court on the potential
infringement of constitutional rights, namely, the rights to social security and freedom
of expression. The Minister submits that the right to freedom of expression is not
violated as all qualifying households will receive STBs, but the date upon which they
will receive their STBs depends entirely on the date when they registered for these. As
to these rights-related averments advanced by the applicants , this Court held in New
National Party60 that, when it is found that the legislative scheme is rational, but that it
60 New National Party of South Africa v Government of the Republic of South Africa [1999] ZACC 5; 1999 (3)
SA 191 (CC); 1999 (5) BCLR 489 (CC).
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has the effect of infringing on rights, reasonableness (the section 36 enquiry) becomes
relevant.61 Because I find that the decision of the Minister to determine the analogue
switch-off date is unlawful, it is not necessary to deal with the arguments raised by the
applicants that the analogue switch -off will infringe on the rights to freedom of
expression and social security.
[55] Before determining the appropriate remedy, I deem it necessary to consider the
registration process for STBs as well as the issue of supplying STBs to all qualifying
households ahead of the analogue switch-off date.
The registration for STBs
[56] The applicants submit that millions of indigent South Africans will be left
without access to television and will experience what is termed “a television blackout”
as a result of the Minister’s failure to investigate the impact of the unreasonable deadline
of 31 October 2021 as the STB registration cut-off date. The parties rely on this Court’s
decision in Democratic Alliance to argue that a failure to consider a material factor
during the process leading to a decision may render both the process and the decision
irrational.
[57] MMA an d SOS submit that there are three categories of people who will be
affected by the analogue switch-off date, namely: (a) the people who qualify for STBs
but have not registered; (b) the people who have registered before 31 October 2021 or
10 March 2022, but whose STBs have not been installed; and (c) the people who do not
qualify for STBs, and who are unable to obtain STBs or new generation television set s
due to the global chip shortage. According to MMA and SOS, the High Court’s order
provided little to no protection for these categories of people.
[58] In respect of the first group, MMA and SOS submit that only 40% of qualifying
households are registered, thus at least 2.26 million households or approximately
61 Id at para 24.
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7.5 million people will be left without access to television as at 30 June 2022. With
regard to the second group, the High Court accepted that households which registered
between 1 November 2021 and 10 March 2022 will be cut-off until 30 September 2022.
The High Court also accepted that given the current rate of installation, it is likely that
not all households which registered for STBs will have their STBs installed before
30 June 2022. In order to ensure that all qualifying households have installed STB s
before the analogue switch -off date, there would have to be an increase in the rate of
installation between 800% and 2600%. The third category of people – persons who do
not qualify for state-sponsored STBs and are required to self-migrate – are also at risk
of being cut-off due to the economic impact of Covid-19, the global chip shortage and
the increase in price and demand for electronics.
[59] Further, they submit that since the analogue switch-off date is being reviewed
for its rationality, this Court is required to assess whether there is a rational connection
between the decision and the purpose it aims to achieve. However, the Minister failed
to provide reasons for announcing the STB registration deadline without advance
warning, and the analogue switch-off date as being 31 March 20 22. No substantive
justification is proffered on the papers.
[60] In response, the Minister submits that the STB registration process was designed
to determine how many people wanted and needed STBs, and were qualified to receive
the benefit. Therefore, as I understand the Minister’s submissions, the STB registration
process and the October deadline was the method utilised to collect the necessary
information to determine the analogue switch -off date. Alternatively, the Minister
submits that even if the process did have some flaws, they were not of such a nature so
as to render the entire digital migration process irrational. The Minister submits that,
as the High Court found, it is through the registration process that households are
required to “raise their hand” to be counted.
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[61] It is settled law that both the process by which the decision is made and the
decision itself must be rational. 62 In the media statement released by the Minister on
5 October 2021, she said: “[g]iven the low numbers of registered beneficiary
households, Cabinet approved a last call for registration with a cut -off date of
31 October 2021, this call is also made fully aware of the impact of the Covid -19
pandemic on household incomes”. Based on this sta tement, the Minister elected to set
the October deadline because of the low registration rate. A further reason was
proffered by the Minister in her submissions before this Court, which was that the
process had been open since 2015, meaning that the deadline set was not irrational. For
these two reasons – low intake and registration being open since 2015 – to rationally
support the Minister ’s decision , the registration had to be effective in serving the
purpose of informing qualifying households of the need to register, the steps to be taken,
and, importantly, the consequences of not registering by 31 October 2021. I am not
persuaded that it can be said that the process leading up to 31 October 2021 was
sufficient. I say so for the following reasons.
[62] The number of households that may be eligible for STBs is estimated to be
3.75 million households. This figure is not disputed by the Minister. It is stated that
1.2 million households registered and qualif ied for STBs before the deadline of
31 October 2021. A further 260 868 households registered after 31 October 2021. By
relying on statistics from StatsSA, the applicants submit that there are approximately
3.3 individuals per household in South Africa, and all the available figures before this
Court are submitted as household figures. Based on these figures, there are currently
approximately 2.5 million households that will either lose access to television on the
analogue switch-off date, or must self -migrate to digital television. The Minister has
not conducted any study to investigate the reason why these households have not
registered, and merely makes an inference that they must have self-migrated.
62 Democratic Alliance above n 43 at para 34.
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[63] It is not up to this Court, in terms of rationality, to second guess the method
utilised by the Min ister. The method chosen to gather the necessary information to
make an informed decision on the analogue switch -off date was, according to the
Minister, the STB registration process. However, what this Court must consider is
whether the “means selected are rationally related to the objective sought to be
achieved”.63 Therefore, can it be said that the STB registration process and the deadline,
in the manner in which it was conducted, is rationally related to the objective sought to
be achieved, being the transition to digital television , without causing millions of
persons to lose access to television on the analogue switch-off date?
[64] Requiring registration for STBs is an entirely permissible requirement, provided
that people are properly informed and giv en reasonable opportunity to register.
The Minister argues that registration for STBs ha s been open since September 2015,
and therefore the three week s’ notice period for the deadline of the STB registration
process is reasonable. This submission, however, ignores two indeterminates. Between
September 2015 and 4 October 2021, persons were invited to register for a benefit and
no deadline was set for such registration. Furthermore, registration was for them not to
lose access on analogue switch-off – an uncertain event happening on an undetermined
date. There was no sense of urgency imposed on the public by the Minister before the
announcement on 5 October 2021. Rather, the process of analogue switch-off has a
regrettable history of delays and postponements. I will consider the steps taken by the
Minister between 2015 and 2021 to inform the public of the need to register for STBs.
[65] The Minister submits that, since 2015, the Department of Communications and
Digital Technologies (Department) conducted awareness campaigns through what is
known as “Imbizo Campaigns”. Seven provinces were the target of the se campaigns,
namely: Northern Cape, Free State, Mpumalanga, Limpopo, KwaZulu -Natal,
Eastern Cape and the North West Province.64 It is reported that 33 campaigns were held
63 Albutt above n 50 at para 51.
64 The Minister did not indicate why Gauteng and the Western Cape were not included in these campaigns.
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between 2015 and 2017. During these campaigns, communication was based on the
analogue switch-off target date of 2017, which was not met. In 2018, two campaigns
were held in the Free State. Between 2019 and 2020, campaigns were held, but the
Minister did not specify how many were held . In 2019, t he Department and the
Department of Co operative Governance concluded a memor andum of understanding
and, through this partnership, an awareness campaign which included field registration,
was conducted. Visits to faith-based organisations in remote parts of the country were
conducted, and door -to-door campaigns were held. The Minister also states that the
Department and the telecommunication companie s have participated in an awareness
campaign by sending bulk text messages. The Minister did not provide the particulars
of the recipients of these text messages or the contents thereof.
[66] It is common cause that for a period of more than two years from January 2019
to October 2021, no STBs were installed by the Department. The installation s only
commenced again in October 2021. Counsel for the Minister argue s that there is a
difference between a pause in the installation of STBs and the registration of S TBs.
Notionally, I agree. The registration of STBs was still open during this period.
However, one might wonder what the purpose of registering for STBs is if the
Department is not undertaking the necessary installations to give effect to the
registration.
[67] I am not in a position to make any determination on the methods used by
the Minister to make the public and, in particular, the indigent members thereof, aware
of the need to register before the analogue switch-off date. This is squarely within her
executive domain. Although the evidence does not indicate the reach of these steps, it
is clear that some steps were taken. However, these steps were taken without a sense
of urgency due to the looming deadline. In my view, in considering the rationality of
the process, due emphasis should be placed on the steps taken by the Minister after the
President announced, during the State of the Nation Address, that the analogue
switch-off would be completed by March 2022. The steps taken before the
announcement of the final analogue switch-off date and the deadline for registering for
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STBs are not irrelevant; however, I place emphasis on the steps taken after
February 2021 as this is the time that persons were required to be notified of the
imminent loss of access to television on a set date, and not a theoretical date in the
future.
[68] There is insufficient evidence before this Court on the steps taken by the Minister
between February 2021 and October 2021 to notify the public of the analogue switch-off
date planned for March 2022 and the need to register with a sense of urgency. Counsel
for the Minister pointed this Court to a statement by the South African Post Office which
states:
“Post Offices countrywide have seen a dramatic increase in members of the public who
want to apply for a subsidised television decoder, or set -top box. This follows the
announcement earlier in the year that South Africa will switch to digital transmissions
in early 2022.
. . .
The government plans to switch the whole of South Af rica to digital television
broadcasts by April next year. You will then need a set -top box to continue watching
TV with your current television set.”
[69] This statement offers little assistance. It advises the public that there is a need
to register for STB s; however, no indication of any immediate deadline to register for
STBs is given. The statement merely states that to avoid being cut off, one requires an
STB and that the analogue switch-off will happen early in 2022.
[70] During October 2021, the Minister launched a campaign focused on three areas:
public relations, advertising and digital communications. This campaign was set to
commence in October 2021 and continue until 31 December 2021. The campaign,
intended to notify persons of the need to register for STBs to ensure access before the
analogue switch -off date, only started after 5 October 2021 and carried on until
December 2021. The effect of this is that persons who were notified through this
campaign in November or December and registered for STBs , would receive their
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benefit within three to six months after the analogue switch-off date. These persons
would lose access to a benefit already enjoyed.
[71] In that same media statement where the 31 October 2021 deadline was
announced, the Minister stated that a list of compatible digital televisions will be shared
on several websites and with the Digital Migration Call Centre. The statement further
indicated that the Digital Migration Call Centre’s “contact details will be shared within
the month of October 2021”. As a result, households which were uncertain whether
their television sets were compatible with digital transmission would only have been
able to, on an unknown date in October, contact the Digital Migration C all Centre to
enquire about the compatibility of their television sets. In the event of incompatibility,
they would still have been required to register before the end of October 2021. The
period provided for all these enquiries was plainly insufficient.
[72] The effect of the Minister’s submissions is that she inferred that millions of
indigent persons in South Africa were aware of the 31 October 2021 deadline, they were
duly informed of the consequences of not registering by that date and accordingly, made
an informed and conscious decision not to register for state -sponsored STBs.
Regrettably, I cannot agree with this submission. In my view, the process leading up to
the 31 October 2021 deadline did not provide adequate opportunity for affected
households to register and , as a result, the process is tainted with procedural
irrationality.
[73] In Democratic Alliance, this Court held:
“The conclusion that the process must also be rational in that it must be rationally
related to the achievement of the purpose f or which the power is conferred, is
inescapable and an inevitable consequence of the understanding that rationality review
is an evaluation of the relationship between means and ends. The means for achieving
the purpose for which the power was conferred must include everything that is done to
achieve the purpose. Not only the decision employed to achieve the purpose, but also
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everything done in the process of taking that decision, constitute means towards the
attainment of the purpose for which the power was conferred.”65
[74] As the process was defective, the Minister did not have the necessary information
before her about the number of persons who qualified and wished to register for STBs
before the analogue switch -off date. In Democratic Alliance , when deal ing with
rationality and ignoring the relevant factors, this Court postulated a three-stage enquiry.
It held:
“If in the circumstances of a case, there is a failure to take into account relevant material
that failure would constitute part of the means to achieve the purpose for which the
power was conferred. And if that failure had an impact on the rationality of the entire
process, then the final decision may be rendered irrational and invalid by the
irrationality of the process as a whole. There is th erefore a three stage enquiry to be
made when a court is faced with an executive decision where certain factors were
ignored. The first is whether the factors ignored are relevant; the second requires us to
consider whether the failure to consider the material concerned (the means) is rationally
related to the purpose for which the power was conferred; and the third, which arises
only if the answer to the second stage of the enquiry is negative, is whether ignoring
relevant facts is of a kind that colours the entire process with irrationality and thus
renders the final decision irrational.”66
[75] In applying the first enquiry, it is clear that the number of households which
qualify for STBs, which have not registered but wish to do so before the analogue
switch-off date, is a relevant consideration. On the Minister’s version, in her statement
of 5 October 2021, she stated:
“To give effect to a successful Digital Migration and Analogue Switch -off processes,
we have to ensure that everyone who needs to migrate from analogue to digital is ready
to do so and are not negatively affected by the Switch-Over from Analogue to digital.”
65 Democratic Alliance above n 43 at para 36.
66 Id at para 39.
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[76] The Minister, therefore, recognised that for a “successful” migration process to
be achieved, persons who are required to migrate to di gital can do so and will not be
negatively affected by the analogue switch-off. The number of households which are
required to register for STBs is accordingly, without a doubt, a relevant consideration.
[77] The second enquiry, whether the failure to conside r the material concerned is
rationally related to the purpose for which the power was conferred, also tells against
the Minister’s decision . It cannot be said that the Minister’s failure to adequately
provide an opportunity for persons to be informed about the need to register before the
deadline – and thus to obtain accurate information about households requiring STBs – is
rationally connected to a successful migration process. Without obtaining and
considering such information, the Minister was not in a position to determine an
analogue switch -off date that would mitigate the harm caused by such a switch off,
which the Minister accepted was amongst the central goals of a success ful migration
process.
[78] On the last enquiry, the Minister argues that even if the process was flawed to a
certain extent, it does not colour the entire process with irrationality. I disagree. The
flaws in the process leading up to the determination of th e analogue switch -off date
meant that the determination was made without any reliable sense of its impact on
millions of indigent persons , whose currently working television sets will be rendered
useless. If a central purpose of the analogue switch -off decision is to mitigate the
adverse impact of switch -off, a process that failed to provide guidance on the number
of households requiring STBs is inevitably coloured with irrationality. It follows that
the decision to impose the registration deadline is irrational.
[79] I emphasise that what I am saying is not whether another means to achieve the
end should have been used . That enquiry goes beyond what this Court is empowered
to do. What I do hold is that the means employed by the Minister meant that her
decision was made without any reliable indication of the households requiring STBs,
and that she therefore failed to take a relevant consideration into account. The Minister
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was at large to determine how such information was obtained. What she could not do,
however, and what tainted her decision with irrationality, was to adopt a process which
meant that the analogue switch -off date was determined without considering the
numbers of households which would be adversely affected by such switch off.
[80] I must point out that when determining a time period for further registration of
STBs, this process is not r equired to start from scratch , and the Minister may
legitimately take into account the opportunities already afforded to qualifying and
indigent persons to register. However, what is required, is a reasonable opportunity to
be duly informed of the need to register and to take action to effect such registration.
As to how this process must take place, this is within the executive sphere and within
the competency of the Minister.
[81] Now that I have found that the Minister’s decision to determine the analogue
switch-off date is unlawful, and the registration of the STBs and the imposed deadline
is irrational, it is apposite to consider what remedial actions should be taken.
Remedy
[82] The first point of call in considering the appropriate remedy is a declaration of
invalidity. Section 172(1) of the Constitution states:
“When deciding a constitutional matter within its power, a court—
(a) must declare that any law or conduct that is inconsistent with the Constitution
is invalid to the extent of its inconsistency; and
(b) may make any order that is just and equitable, including—
(i) an order limiting the retrospective effect of the declaration of
invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on
any conditions, to allow the competent authority to correct the defect.”
MHLANTLA J
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[83] The diction of section 172(1)(a) makes a declaration of invalidity of the
Minister’s conduct mandatory. In Economic Freedom Fighters,67 this Court held:
“Declaring law or conduct inconsistent with the Constitution and invalid is plainly an
obligatory power vested in this C ourt as borne out by the word ‘must’. Unlike the
discretionary power to make a declaratory order in terms of s ection 38 of the
Constitution, this Court has no choice but to make a declaratory order where
section 172(1)(a) applies. Section 172(1)(a) impels this C ourt, to pronounce on the
inconsistency and invalidity of, in [that] case, the President’s conduct and that of the
National Assembly. This we do routinely whenever any law or conduct is held to be
inconsistent with the Constitution.”68
[84] In the ordinary course, a declaration of invalidity is usually followed by a just
and e quitable order in accordance with section 172(1)(b). In the case of review
applications, such as the one before us, the natural and conventional consequence would
entail setting aside the impugned decision or conduct.69
[85] On this score, it would be just and equitable for the declaration of invalidity to
be followed by the setting aside of the decision of the Minister concerning the
registration date and the analogue switch-off date, as well as the order of the High Court.
[86] Over and above the remedy of setting aside the Minister’s decision and the order
of the High Court, the applicants have enjoined this Court to extend its just and equitable
relief to: (a) ordering the Minister to engage in a consultation process with affected
67 Economic Freedom Fighters v Speaker, National Assembly [2016] ZACC 11; 2016 (3) SA 580 (CC); 2016 (5)
BCLR 618 (CC).
68 Id at para 103. See also Doctors for Life International v Speaker of the National Assembly [2006] ZACC 11;
2006 (6) SA 416 (CC); 2006 (12) BCLR 1399 (CC) at para 201.
69 See Eskom Holdings Ltd v New Reclamation Group (Pty) Ltd [2009] ZASCA 8; 2009 (4) SA 628 (SCA) at para
11, where it was held that “[o]rdinarily, where there has been a reviewable irregularity in the award of the tender,
an unsuccessful tenderer would be entitled to call for the award to be set aside” . See also Johannesburg
Consolidated Investment Co v Johannesburg Town Council 1903 TS 111 at 115, which held:
“Whenever a public body has a duty imposed upon it by statute, and disregards important
provisions of the statute, or is guilty of gross irregularity or clear illegality in the performance
of the duty, this Court may be asked to review the proceedings complained of and set aside or
correct them.”
MHLANTLA J
36
parties, before determining an analogue switch -off date; (b) ordering the Minister to
comply with her constitutional obligations to provide those South Africans presently
reliant on analogue broadcasting with alternative means to access terrestrial
broadcasting before analogue switch-off is completed; and (c) ordering the Minister to
file a report with the High Court to explain the steps taken to provide those alternative
means. In addition, e.tv also seeks an admission of the SABC’s statement.
[87] Vodacom, ICASA and Sentech oppose the relief sought by the applicants on the
basis that the relief sought – the declarators preventing the Minister from completing
analogue switch-off until certain steps have been taken – is, in substance, interdictory
relief brought under the guise of declaratory order s. They submit that granting the
interdictory relief is undesirable as the applicants have not met all the requirements of
a final interdict.
[88] Further, ICASA records that it auctioned the spectrum in March 2022 and issued
licenses to the successful bidders by 7 May 2022. ICASA has also secured provisional
spectrum for terrestrial broadcasting uses; however, such provisional spectrum regime
is set to end on 30 June 2022. ICASA submits that, as of 1 July 2022, t he mobile
network operators (MNOs), that have successfully submitted bids for the spectrum and
have been licenced by ICASA, are expected to use the auctioned spectrum in
accordance with their licence conditions. It is on these bases that ICASA opposes thi s
application and any relief that would effectively hal t the digital migration process.
Sentech submits that the analogue switch-off cannot be postponed indefinitely as it will
be difficult to source the necessary parts to continue maintenance of the anal ogue
system.
[89] With respect to the applicants’ first and second requests, this Court cannot grant
them. The broader relief sought would inevitably require this Court to dictate to the
Minister that certain nuanced and specific steps must be taken. What the applicants are
in effect asking of this Court is to prescribe the procedure that the Minister must follow
before determining the analogue switch -off date. According to this extended relief
MHLANTLA J
37
sought, the Minister must first consult all affected parties and provide alternative means
to access terrestrial broadcasting before determining the analogue switch-off date. This
would be tantamount to substitution, which would not only be inappropriate under the
circumstances of this matter but would also go beyond the scope of justice and equity
and would violate the principle of the separation of powers.
[90] It is a well -established principle that courts should “be reluctant to substitute
their decision for that of the original decision maker”, 70 save for appropriate or
exceptional circumstances. 71 This Court has endorsed the decision in Johannesburg
City Council,72 where it was held that “[t]he ordinary course is to refer back because the
Court is slow to assume a discretion which has by statute b een entrusted to another
tribunal or functionary”.73
[91] In Trencon,74 this Court laid out the conditions for substitution. It held—
“given the doctrine of separation of powers, in conducting this enquiry there are certain
factors that should inevitably hold greater weight. The first is whether a court is in as
good a position as the administrator to make the decision. The second is whether the
decision of an administrator is a foregone conclusion. These two factors must be
considered cumulatively. Thereaf ter, a court should still consider other relevant
factors. These may include delay, bias or the incompetence of an administrator. The
70 Premier, Mpumalanga v Executive Committee, Association of State -Aided Schools, Eastern Transvaal [1998]
ZACC 20; 1999 (2) SA 91 (CC); 1999 (2) BCLR 151 (CC) (Premier) at para 50.
71 In Intertrade Two (Pty) Ltd v MEC for Roads and Public Works, Eastern Cape 2007 (6) SA 442 (Ck) at para 46,
the Court aptly held that—
“courts, when considering the validity of administrative action, must be wary of intruding, even
with the best of motive s, without justification into the terrain that is reserved for the
administrative branch of government. These restraints on the powers of the courts are universal
in democratic societies such as ours and necessarily mean that there are limits on the powers of
the courts to repair damage that has been caused by a breakdown in the administrative process.”
72 Johannesburg City Council v Administrator, Transvaal 1969 (2) SA 72 (T). See Premier above n 70 at para 50.
73 Johannesburg City Council id at 76D-G.
74 Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd [2015] ZACC 22;
2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC).
MHLANTLA J
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ultimate consideration is whether a substitution order is just and equitable. This will
involve a consideration of fairness to all implicated parties.”75
[92] Most pertinent to this case are the first and second factors. With respect to the
first factor – whether a court is in as good a position as the administrator or
decision-maker to make the decision – a primary consideration is whether the court is
seized with all the relevant information and whether the decision in question still
requires some level of expertise. “A court will not be in as good a position as the
administrator where the application of the administrator’s/decision-maker’s expertise is
still required and a court does not have all the pertinent information before it.” 76 A
court will also not be in such a position where the decision to be made is so polycentric
or policy-laden so as to demand deference to the decision-maker.77
[93] On the second factor – whether the decision of an administrator is a foregone
conclusion – this Court has determined that a decision will be a foregone conclusion
75 Id at para 47.
76 Id at para 48.
77 Id at para 50. At para 43, the Court outlined the need for judicial deference due to institutional competence. It
held:
“Indeed, the idea that courts ought to recognise their own limitations still rings true. It is
informed not o nly by the deference courts have to afford an administrator but also by the
appreciation that courts are ordinarily not vested with the skills and expertise required of an
administrator.”
See also Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism [2004] ZACC 15; 2004 (4)
SA 490 (CC); 2004 (7) BCLR 687 (CC) at para 46, citing Minister of Environmental Affairs and Tourism v
Phambili Fisheries (Pty) Limited [2003] ZASCA 46; [2003] 2 All SA 616 (SCA) at para 47, where this Court
held that—
“a judicial willingness to appreciate the legitimate and constitutionally -ordained province of
administrative agencies; to admit the expertise of those agencies in policy -laden or polycentric
issues; to accord their interpretations of fact and law due respect; and to be sensitive in general
to the interests legitimately pursued by administrative bodies and the practical and financial
constraints under which they operate. This type of deference is perfectly consistent with a
concern for individual rights and a refusal to tolerate corruption and maladministration. It ought
to be shaped not by an unwillingness to scrutinise administrative action, but by a careful
weighing up of the need for – and the consequences of – judicial intervention. Above all, it
ought to be shaped by a conscious determination not to usurp the functions of administrative
agencies; not to cross over from review to appeal.”
See also International Trade Administration Commission v SCAW South Africa (Pty) Ltd [2010] ZACC 6; 2012
(4) SA 618 (CC); 2010 (5) BCLR 457 (CC) at para 95 and Doctors for Life above n 68 at para 37.
MHLANTLA J
39
“where there is only one proper outcome of the exercise of an administrato r’s
discretion”78 and, in Johannesburg City Council , it was found that a foregone
conclusion could result where “it would merely be a waste of time to order the tribunal
or functionary to reconsider the matter”. 79 It must be noted that the second factor wil l
be impeached if it has been determined that the court is in as good a position as the
decision-maker.80
[94] From the content of the first and second factors, it is evident that this Court is
not in as good a position as the Minister to make the decisions, since it is not in
possession of all the facts and information that the Minister would require to make the
decision concerning the process that must be followed to reconcile the date for the
analogue switch -off and the final registration date for STBs with the prescripts of
legality. The Court is also not seized with all the relevant statistical data and budgetary
considerations, nor is it seized with the logistical information, which it would require to
be placed in the same position as the Minister for decision-making purposes. It is also
evident that these decisions are largely polycentric, and thus require deference. 81
Further, it is clear that there can be no foregone conclusion, since there is a plethora of
decisions that can be taken to remedy the unlawful conduct and, additionally, the first
factor has been impeached by the Court’s lack of pertinent information.
[95] Given the weight of these factors and the mandatory language of Trencon, it is
clear that the facts and circumstances of this case militate against substitution.
[96] As the first and second requests for extended relief have been rejected, it follows
that the third request – ordering the Minister to file a report with the High Court to
explain the steps taken to provide those alternative means – cannot be entertained, as it
78 Trencon above n 74 at para 49.
79 Johannesburg City Council above n 72 at 76D-G.
80 Trencon above n 74 at para 50, wherein it was held that “there can never be a foregone conclusion unless a
court is in as good a position as the administrator”.
81 International Trade Administration Commission above n 77 at para 95.
MHLANTLA J
40
is largely contingent on the second request. Thus, the extended relief sought by the
applicants is inappropriate.
[97] The impropriety of substitution is similarly applicable to the High Court, as at
the time of its judgment , the High Court also suffered from the lack of pertinent
information, which plagues this Court . It was also not in the same position as
the Minister for decision-making purposes when it set a new analogue switch-off date.
The High Court has not proffere d an explanation or basis for substitution.
Consequently, the High Court’s decision falls to be set aside.
[98] In so far as the SABC ’s statement is concerned, this Court need not make
pronouncements on the admission of the SABC’s statement , as the probative value of
this statement has been rendered nugatory by this Court’s finding that the Minister’s
conduct does not meet the requirement of rationality.
[99] Although the submissions by Vodacom, Sentech and ICASA carry some weight
and while I am mindful of the time constraints and the need to balance the interests of
all the parties concerned, such considerations cannot be a basis for this Court to endorse
a process and decisions that have been tainted with irrationality or illegality. The Court
also has an obliga tion to safeguard the interests of more than two million indigent
households which have been impacted by the registration process and will undoubtedly
be affected by the analogue switch-off. Moreover, the concerns raised by Vodacom,
Sentech and ICASA largely strike at the urgent need for the Minister to take action to
reconcile the analogue switch -off planning and STB process with the demands of
rationality. Thus, in granting relief, this Court does not purport to delay the process; it
merely leaves the ball in the Minister’s court.
[100] Therefore, the demands of justice and equity require that the Minister’s decision
be declared invalid and set aside. The decision of the High Court also falls to be set
aside. It would be just and equitable to leave the implementation of this judgment to
MHLANTLA J
41
the Minister to determine the analogue switch -off date in a manner that is consistent
with the prescripts of legality.
Concluding remarks – conduct of e.tv
[101] The respondents, in particular the Minister, argue that e. tv has persistently
obstructed the digital migration process and that it has launched this application under
the guise of representing the indigent population, while in reality, it is only concerned
with its own narrow commercial interests. The Minister submits that granting the
additional relief sought by e.tv would encroach on the doctrine of separation of powers
and effectively prioritise e.tv’s narrow commercial interests over the public interests .
Vodacom and ICASA support this argument. Vodacom further argues that in previous
litigation launched by Telkom, e.tv had supported an expedited analogue switch -off
date and is now making a complete about-turn.
[102] While these submissions bear consideration, it must be noted that t his Court is
not called up on to make a pronouncement on e.tv’s intentions in bringing this
application. This Court is required to objectively consider the rationality of the decision
taken by the Minister in determining the analogue switch-off date. This exercise was
supported by the submissions of MMA and SOS, two non -profit organisations with no
vested commercial interests, who act in the public interest.
[103] In granting the relief of setting aside the analogue switch-off date, this Court is
cognisant of the fact that digital migration will not be effected on 30 June 2022. This
relief should not be construed as an invitation for any of the parties before this Court to
bring about a further delay of digital migration, through whatever means . All parties
agree that there is a need for South Africa to migrate to digital and for the analogue
switch-off to imminently take place. Analogue switch -off is an urgent, and
unfortunately much delayed, national priority. Therefore, once adequate notice is given
to the public to make informed dec isions on whether to register for an STB, digital
migration should proceed without further delay.
MHLANTLA J
42
Costs
Appeal on costs
[104] e.tv seeks a n order setting aside the costs order of the High Court. T he High
Court applied the Biowatch principle to MMA and SOS; however, it held that as e.tv
was not acting in the public interest, Biowatch did not apply. It ordered e.tv to pay 50%
of the Minister’s costs and 100% of ICASA’s, the Chairperson of ICASA’s , and
Vodacom’s costs – inclusive of the costs of three counsel where employed.
[105] The scope and content of the Biowatch principle has become trite; albeit, for
purposes of this case, it bears repeating. Essentially, the general rule is that in
constitutional litigation involving private parties and the government, “if the
government loses, it should pay the costs of the other side, and if the government wins,
each party should bear its own costs”. 82 This Court has confirmed that when
considering whether the Biowatch principle applies, the crucial consideration is not the
character of the parties, but the nature of the litigation at issue.83
[106] This matter concerns the review of the Minister’s conduct and decisions relating
to the analogue switch -off date and the STB registration deadline. It is now common
cause that legality reviews of this nature fall squarely within the realm of constitutional
issues.84 Although it is reasonably conceivable that e.tv has a commercial interest in
this matter, the nature of this litigation is constituti onal which is for the benefit of
millions of indigent persons in South Africa. On this premise, and based on the facts,
circumstances and outcome of the matter, the Biowatch principle applies. Therefore,
the costs order of the High Court cannot stand, as there was no basis for not applying
the Biowatch principle.
82 Biowatch above n 30 at para 22.
83 Economic Freedom Fighters v Gordhan; Public Protector v Gordhan [2020] ZACC 10; 2020 (6) SA 325 (CC);
2020 (8) BCLR 916 (CC) at para 77.
84 See Gijima above n 58 and Buffalo City above n 58.
MHLANTLA J
43
[107] The High Court awarded the costs of three counsel. I see no reason why the
costs of three counsel is warranted.
Costs in this Court
[108] Before this Court, e.tv seeks costs of three counsel. MMA and SOS also seek
costs of this applica tion for leave to appeal. Vodacom has opposed the costs order
sought by e.tv, on the basis that e.tv pursued litigation for self -serving and purely
commercial ends. Vodacom further submits that e.tv has no basis for seeking costs
against it, as Vodacom is also a private party engaged in debating the same issues in the
same litigation.
[109] The applicants have been successful ; therefore, they are entitled to their costs.
However, there are no compelling reasons to justify the award of costs of three counsel.
Therefore, the Minister must pay the applicants’ costs including the costs of two
counsel.
Order
[110] The following order is made:
1. Leave to appeal directly to this Court on an urgent basis is granted.
2. The appeal is upheld.
3. The order of the High Court is set aside and replaced with the following:
“(a) It is declared that the announcement of 31 March 2022 as the final
switch-off date of the analogue signal and the end of dual
illumination issued by the Minister of Communications and Digital
Technology on 28 February 2022 in terms of the Broadcasting
Digital Migration Policy (as amended), is unconstitutional, invalid
and is set aside.
(b) It is declared that the Minister’s decision to impose a deadline of
31 October 2021 to register for set -top boxes is unconstitutional,
invalid and is set aside.
MHLANTLA J
44
(c) The Minister must pay the costs of the applicants, including the
costs of two counsel where so employed.”
4. The Minister must pay the applicants’ costs in this Court, including the
costs of two counsel.
For the Applicant in CCT 89/22:
For the Applicants in CCT 92/22:
For the First Respondent in CCT 89/22
and Second Respondent in CCT 92/22:
For the Second and Third Respondents
in CCT 89/22 and Third and Fourth
Respondents in CCT 92/22:
For the Sixth Respondent in CCT 89/22
and Seventh Respondent in CCT 92/22:
For the Twelfth Respondent in
CCT 89/22 and Thirteenth Respondent
in CCT 92/22:
G Marcus SC, M du Plessis SC,
A Coutsoudis, S Pudifin -Jones and
C Moodley instructed by Nortons
Incorporated
N Ferreira and K Harding -Moerdyk
instructed by Rosengarten and Feinberg
Attorneys
T Motau SC, B Makola SC,
B Lekokotla, P Smith and B Dhladhla
instructed by State Attorney, Pretoria
W R Mokhare SC, M Majozi and
C Lithole instructed by Kunene
Ramapala Incorporated
F Snyckers SC, D Turner and
A Msimang instructed by Cliffe Dekker
Hofmeyr Incorporated
A B Rossouw SC and G Jansen van
Vuuren instructed by NM Aboo
Attorneys