SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

Case number: 2025 -008928
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED.
DATE: 27/03/2025
SIGNATURE:

In the matter between:

E.TV (PTY) LIMITED 1ST APPLICANT

MEDIA MONITORING AFRICA 2ND APPLICANT

SOS SUPPORT PUBLIC BROADCASTING
COALITION 3RD APPLICANT

AND

MINISTER OF COMMUNICATIONS AND
DIGITAL TECHNOLOGIES 1ST RESPONDENT

PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA 2ND RESPONDENT

SENTECH SOC LIMITED 3RD RESPONDENT

INDEPENDENT COMMUNICATIONS AUTHORITY
OF SOUTH AFRI CA 4TH RESPONDENT

SOUTH FRICAN BROADCASTING CORPORATION
SOC LIMITED 5TH RESPONDENT

CAPE TOWN COMMUNITY TELEVISION 6TH RESPONDENT

TSHWANE COMMUNITY TELEVISION 7TH RESPONDENT

SOWETO COMMUNITY TELEVISION 8TH RESPONDENT

1KZN TV 9TH RESPONDENT

TRINITY BROADCASTING NETWORK 10TH RESPONDENT

MEDIA DEVELOPMENT AND DIVERSITY AGENCY 11TH RESPONDENT

CHAIRPERSON: NATIONAL ASSEMBLY PORTFOLIO
COMMITTEE ON COMMUNICATIONS AND DIGITAL
TECHNOLOGIES 12TH RESPONDENT

JUDGMENT

BAQWA, J:

INTRODUCTION
1.
This is an application which is brought in two parts, Part A being an urgent
application for an interdict pending the final determination of Part B review of the
impugned decision to set 31 March 2025 as the analogue switch off (ASO ) date.
The applicants seek the granting of an interim order to maintain the status quo by
suspending the ASO date and interdicting the Minister (the first respondent) and/or
Sentech (the third respondent, which abides) from giving effect to the A SO date.

THE PARTIES

2.
The first applicant is E.TV, with its place of business at 4 Albany Road, Dunkeld
West, Johannesburg. It is South Africa’s biggest independent and free -to-air
television channel and the only meaningful non -state broadcaster of free -to-air
television news in South Africa. Established in 1998, its E.TV channel is the most
viewed English television channel in South Africa.

3.
E.TV operates in terms of an Individual Broadcasting Service Licence issued by
ICASA, which entitles it to pr ovide a commercial television broadcasting service. In
terms of clause 2 of schedule 1 of the licence E.TV is obliged to provide national
coverage of its broadcasting services provided that at any given time the minimum
population coverage is 77%.

4.
The second applicant is Media Monitoring Africa (MMA), a non -profit organisation
with its principal place of business at Fourth Avenue , (corner Fourth Avenue and
Sixth Street) Parkhurst, Johannesburg.

5.
The third applicant is SOS Support Pub lic Broadcasting Coalition (SOS), a non -profit
organisation with its principal place of business at Suite 3, Art Centre, 22 Fourth
Avenue, (corner Fourth Avenue and Sixth Street), Parkhurst, Johannesburg.

6.
The first respondent is the Minister of Communicati ons and Digital Technologies who
is cited as the responsible Minister under the Electronic Communications Act (ECA)
and the custodian of the digital migration process which is the subject of this
application. He takes the decisions regarding the digital m igration process and he is
required to gazette the date of ASO. The Minster’s offices are at IParioli Office Park,
1166 Park Street, Hatfield, Pretoria.

7.
The second respondent is the President of the Republic of South Africa who is cited
as head of the National Executive and Cabinet. The Minister set the analogue
switch off date for 31 March 2025 either in or after consultation with Cabinet.

8.
The third respondent is Sentech Soc Limited (Sentech), a state -owned company
offering digital content delivery services to public and commercial entities with its
main place of business situated at Sender Technology Park, Octave Road,
Honeydew, Gauteng. S entech is cited on account of the interest it has in the relief,
as the entity which provides the services used by E.TV for the purpose of analogue
transmission, and as the entity that will be responsible for “flicking the switch” to turn
off analogue broa dcasting in South Africa on the date determined by the Minister.

9.
The fourth respondent is the Independent Communications Authority of South Africa,
ICASA is a juristic person established in terms of section 3(1) of the Independent
Communications Author ity of South Africa Act 13 of 2000 (ICASA Act). Its registered
offices are at 350 Witch -Hazel Avenue, Eco -Park Estate, Centurion. ICASA
exercises the powers and performs the duties conferred and imposed on it by the
ICASA Act and the underlying statutes, including the Electronic Communications Act
36 of 2005 (“ECA”)

10.
The fifth respondent is The South African Broadcasting Corporation Limited. The
SABC is a public company with limited liability incorporated in terms of the Company
Laws of South Africa, and the Broadcasting Act 4 of 1999. The SABC’s main place
of business is at Broadcasting Centre, Henley Road, Auckland Park, Johannesburg.
The SABC is a free -to-air terrestrial television broadcaster.

11.
The sixth to tenth respondents are the following five community television
broadcasting service licenses:

11.1. Cape Town TV, with physical address 18 Lower Scott Road,
Observatory, Cape town and email address: m[...] ;

11.2. Tshwane TV, with physical address 75 Twickenham Avenue, Auckland
Park, Johannesburg, email address: k[...];

11.3. Soweto TV, with physical address 8270 Vilakazi Street, Orlando West,
Soweto, and email address: T[...];

11.4. TKZN TV, with physical address 71 Dollar Drive, Richards Bay Cental,
Richards Bay, and email address: b[...];

11.5. FAITH TV, with physical address 74 Studio Office Park, Cresta,
Johannesburg, and em ail address: b[...] and i [...], no relief is sought against
these license es, but they are cited for any interest they may have in the
matter.

12.
The eleventh respondent is Media Development and Diversity Agency (MDDA).
MDDA is a statutory development agency for promoting and ensuring media
development and diversity. It is a partnership between the South African
Government and major print and bro adcasting companies to assist in, amongst
others, developing community and small commercial media in South Africa. It was
established in 2003, in terms of the Media Development and Diversity Agency Act 14
of 2002 and started providing grant funding on 20 January 2004. It is cited as the
statutory body responsible for the promotion of development and diversity in the
South African media throughout the country and for any interest it may have in this
application. Its offices are at 26 Canany Road, SABC Auc kland Park Campus,
Auckland Park.

13.
The twelfth respondent is the Chairperson, National Assembly P ortfolio Committee
on Communications and Digital Technologies who heads the Portfolio Committee
responsible for overseeing the Minister and ASO. She is cited in her official capacity
for any interest she may have in this matter. She is served care of the State
Attorney and her email address is: k[...]

ABBREVIATIONS

14.
I have considered it necessary to list the abbreviations used in this judgment upfront
to facilitate an easier understanding of what follows belo w:

ABBREVIATION DEFINITIONS
ASO Analogue Switch off
BDM POLICY Broadcasting digital Migrations Policy published
under GN 97 in GG 35014 of 07/02/2012 and GG
38583 of 18/03/015
BDMC Broadcast Digital Migration Committee
BRC Broadcast Research Council
DEPARTMENT Department of Communications and Digital
Technologies
DTH Direct -to-home (Satellite)
DTT Digital Terrestrial Television
e.tv e.tv (Pty) Limited vs Minister of Communications and
digital Technologies 2023(3)SA 1(cc)
ECA Electronic Communications Act 36 of 2005
ICASA Independent Communications Authority of South
Africa
ITU International Telecommunications Union
MINISTER Minister of Communications and Digital Technologies
NAB National Association of Broadcasters
REGULATIONS Digital Migration Regulations, 2012 published under
GN 1070 in GG 36000 of 14 December 2012
SABC South African Broadcasting C orporation
SITA State Information Technology Agency
STB Set-top Box
USAASA Universal Service and Access Agency of South Africa

BACKGROUND

15.
This application arises as a consequence of the implementation of the Digital
Migration Policy which is led by the Minister.

16.
Television is broadcast through the use of frequency signals which are different
signals on the spectrum with analogue television being the original television
technology which utilised analogue signals to transmit video and audio. The
broadcasting signal in an analogue television set is received directly from an aerial or
antenna and transmits through a terrestrial analogue signal. Currently all analogue
broadcasting in South Africa happens in the frequency band below 694 MHz.

17.
Digital television is the transmission of television signals using digital encoding. It
makes more economical use of scarce radio spectrum space hence the decision to
go the digital migration route. It allows multiple channels to be transmitted with the
same bandwidth capacit y previously used by a single analogue channel, and
provides additional features that analogue television cannot.

18.
Digital television signals are transmitted in two ways. Firstly, DTT involves
transmission of television signals through transmission signals built on land and
viewers need a set that is capable of receiving digital signals. Secondly DTH
involves transmis sion of television signals via satellite and viewers need a satellite
dish and a set top box capable of receiving digital signals. Analogue television sets
are not able to display information received from digital frequencies without a set -top
box to conv ert digital transmissions to analogue transmissions.

DIGITAL MIGRATION

19.
The process through which the broadcast of television is migrated from the original
analogue technology to digital technologies and frequency signals is called “digital
migration” or “broadcast digital migration” (BDM).

20.
The process end of digital migration is ASO which signifies the time when South
Africa ceases analogue television broadcasting. When this happens, E.TV’s,
SABC’s and numerous community broadcasters allocation o f the requisite analogue
frequency for analogue broadcasting will come to an end.

21.
The result of BDM is the freeing up of spectrum. The primary aim being to free up
“space” on the electromagnetic spectrum in the 700 MHz and 800 MHz frequency
“band” wh ich has been re -allocated for use by the telecommunication companies
such as MTN, Vodacom, Telkom, Cell C etc. The outcome is the effective data
usage which bolsters the economy.

22.
This goal has already been achieved with all broadcasting (including an alogue
broadcasting) previously in the 700 MHz to 800 MHz band having vacated this band
into the lower bands which continue to be dedicated to broadcasting. South African
telecommunication companies have already been assigned their respective
frequencies i n the 700 MHz to 800 MHz band pursuant to the “spectrum auction”
which was held in 2022.

23.
All analogue television signals that were previously broadcasting above 694 MHz
have with ICASA’s approval migrated their analogue broadcasts to the below 694
band, thus making available the undisturbed use for services to telecommunications
operators.

ISSUE TO BE DECIDED

24.
A decision was taken in line with the above developments to switch off -permanently -
analogue television broadcasting on 31 March 2025 and the applicants have applied
to review that decision.

25.
This Court is seized with Part A of that decision. The issue for determination is
whether to cut off millions of people from access to television or whether they should
retain that access pending the outcome of the applicant’s review. Their constitutiona l
right to freedom of expression , so the applicants submit , which includes freedom to
receive information will be irreparably harmed. They submit further that with interim
relief government will maintain the status quo for a while longer until an expedited
determination of the applicants’ review . The harm that would be caused by not
granting interim relief would be more catastrophic that any potenti al harm to the
respondents.

26.
The applicants contend further that without the relief, what would ensue is the
perpetuation of what the Chair of the Parliament’s Portfolio Committee on
Communications called as “unmitigated disaster”. For, as she lamente d, while
government speaks about “leaving no one behind” it adopted a haphazard (“spray
and pray”) approach to digital migration and the identification and engagement with
indigent households that government needs to ensure are not left behind.

THE GROUND S FOR REVIEW

27.
The applicants seek to challenge the decision to set the ASO at 31 March 2025 on a
number of fronts namely, irrationality, unlawfulness, absence of consultation, and
non-compliance with the KZN principle. The KZN principle is explained at paragraph
62 below.

CABINET HAD NO POWER TO DECIDE ASO

28.
It is common cause that the decision to set the ASO at 31 March 2025 was taken by
Cabinet and not by the Minister. There is no ambivalence in the law in this regard.
In the e.tv judgment the Con stitutional Court held that the Minister is empowered to
set the ASO date and that he is empowered by section 85(2(c) of the Constitution to
take the decision1. His decision is the implementation of the BDM policy2. Clause
3.3.1 of the BDM Policy provides also that ASO should occur “on a date to be
determined by the Minister in consultation with Cabinet”.

29.
As the Constitutional Court held in e.tv “(t)he Regulations and the BDM Policy,
therefore presuppose that the Minister has the necessary pow er to determine the
analogue switch off date. ” This finding was central to the determination whether the
decision on the ASO date constituted an administrative or executive action, which in
turn determined the ambit of the judicial review.

30.
The submis sion by the first respondent that because the BDM is a national policy of
the government, there is nothing unlawful when the President and other members of
the Cabinet take it upon themselves to implement national policy such as the BDM
Policy by proclaimi ng the analogue switch -off date clearly overshoots the runway. It
is unlawful. The attempt to justify the decision on the basis of Esau and others v
Minister of Co -operative Governance And Tradition Affairs And Others3 is misplaced.


1 E.tv judgment paragraph 35.
2 e.tv judgment paragraphs 35 -6.
3 [2021] ZASCA 9 at paragraph [56].
30.
The legal consequences of the wrong person taking the decision are apparent. The
decision is unlawful because “the legislature and Executive in every sphere are
constrained by the principle that they may exercise no power and perform no
function beyond th at conferred upon them by law” Fedsure Life Assurance Ltd v
Greater Johannesburg Tra ditional Metropolitan Council”4 Minister of Water and
Sanitation vs Sembcorp Siza Water (Pty) Ltd5

31.
It is established law that “a functionary in whom a discretionary power is vested must
himself exercise that power in the absence of a right to delegate”. Minister of
Environment and Tourism and Ano vs Scenematic Fourteen (Pty) Ltd6 ,Walele vs
City of Ca pe Town and others7

32.
The submission that the President and the Cabinet derived their power from Section
85(1) of the Constitution is incorrect. Where the wrong person exercises a power, it
is reviewable on a number of grounds, including material error of law, a failure to
take an action in terms of an empowering provision which placed a duty on a
particular individual or abdicating a discretion.
Stutterheim High School v Member of the Executive Council, Department of
Education, Eastern Ca pe8; Mlokoti v Amathole District Municipality an Ano9.

33.
To make matters worse, the absence of reasons by the Cabinet regarding the
decision on ASO (assuming it had the power) renders the decision arbitrary. Minister
of Justice and Ano vs SA Restruc turing and Insolvency Practitioners Association and
Others 10

4 1999 (1) 374 (CC) at paragraph 58.
5 2023(1) SA 1(cc) at paragraph 83.
6 2005(6) SA 182 (SCA) at paragraph 20;
7 2008⁷(6) SA 129 (cc) at paragraph 113.
8 [2009] 4 All SA 364(E) at paragra phs 28 and 59
9 2009(6) SA 354(E) at 380.
10 2018(5) SA349(cc) at paragraphs 49 and 55 .
Significantly the affidavit promised to be filed by the President in the Minister’s
answering affidavit was also not filed.

Absence of consultation regarding ASO of 31 March 2025.

34.
The applicants contend that they were not consulted when the Cabinet decided to
set 31 M arch 200 5 as the analogue switch -off date. This is contested by the
Minister.

35.
The stance taken by t he Minister is as follows:

The purpose of consultation is to solicit the views of stakeholders on the
subject matter of consultation. The subject matter of the consultation in this
case was the analogue switch -off date and matters incidental to it. The
decision -maker only has to give interested parties an opportunity to make
representations and consider the representations before making the decision.

36.
In support of his stance the Minister states that on 9 December 2022 he invited
interested parties t o submit comments on the proposed analogue switch -off date of
31 March 2023 and that the applicants responded to the invitation and submitted
written comments. He considered that submissions and responded to each of them.

37.
After engaging with the stak eholders, the Minister was persuaded not to proclaim 31
March 2023 as the analogue switch -off date, which is what the applicants wanted.

38.
During consultations with the broadcasters, a two phase migration approach was
agreed upon. In the Minister’s letter to broadcasters dated 13 June 2013, the
Minister recorded that after having “noted your feedback and considered your inputs
from various m eetings and workshops regarding the analogue switch -off approach,
the Department …… has resolved to adopt a two -phase approach towards analogue
switch -off.”

39.
Subsequent to this feedback by the Minister, he decided to convene a steering
committee to as sess progress and to determine the way forward. It is this committee
which adopted a hybrid approach of the two phases referred to in the letter to
broadcasters dated 13 June 2023.

40.
After the Committee had considered the various views of the stakeholders, it was
recommended to the Minister to appro ve “That 31 December 2024 is the ultimate
date for analogue switch -off, even if the registration and subscriptions do not reach
the 2.5 million cumulative household migration level notwithstanding al l efforts by all
stakeholders” . The SABC attended the first workshop whereas the community
broadcasters attended the second workshop. According to an explanation in the list
of attendees MMA and SOS had not attended the first workshop as they are not
broadcasters.

41.
A letter dated 14 June 2023 from e.tv summarises the fact that it has not always
been a discordant environment along the digital migration journey. E.TV referred “to
the recent constructive and collaborative approach that has recently bee n adopted
by the Department in engaging with broadcasters in order to find a potential solution
to the challenges that are posed by the switching off of analogue transmitters, given
the fact that millions of South Africans remain dependent on analogue sign al to
access television. ”

42.
MMA and SOS have also engaged the Department through copious correspondence
in which they made written representations to the Minister and the President
requesting the Minister to postpone the analogue switch -off date of 31 December
2024. According to the Minister, there is no suggesti on that the Minister did not
consider their views to the extent that the Minister advised them that “ the earliest
opportunity that Cabinet will possibly deliberate on the matter again is at its next
meeting on Wednesday 04 December 2024”

43.
Consonant wi th the stance referred to above taken by the Minister , he concludes as
follows:

“When Cabinet met on 04 December 2024, it knew that the applicants wanted
the 31 December 2024 analogue switch -off date to be postponed and the
reasons for the postponement. T he fact that the Cabinet postponed that date
to a date with which the applicants do not agree with does not mean that their
views were not considered”.

44.
There was an obligation on the Minister to consult stakeholders regarding the actual
proposed date of the ASO .11

45.
The requirements of consultation laid down by the e.tv judgment are:

45.1. The consultations must be in respect of the actual date;
45.2. the consultations must include critical questions such as the number of
persons who qualify to receive STB’s who would like to register before the
ASO and how long it would take, at the current rate of installations, for the
households who wish to register to receive STB’s to be supplied with them.

46
Upon enquiry by the Court, Counsel for the Minister conceded that the above
consultation requirements where not complied with by the Minister. The country and
the stakeholders (including the applicants) were presented with a fait accomp li.

47.

11 . E.tv judgment paragraphs 488; 51 -52.
Further, the stakeholders were never informed that the Minister or the Cabinet w ere
considering setting the ASO at 31 March 2025 nor were they invited to comment on
whether 31 March 2025 was viable in light of the factors identified by the
Constitutional Court as being crucial to such consultation.

48.
The Minister is not assisted in his attempt to escape his obligation to consult the
stakeholders by contending that e.tv had “made a long list of submissions to the
Government to postpone the date” and th at government did postpone the date.

49.
Further, the Minister’s submission is factually and legally incorrect as the letter of 01
December was in response to the ASO set at 31 December 2024. It was not and
could not have been, a response to the newly a nd unilaterally imposed ate of 31
March 2025 in respect of which nobody had prior notice or an opportunity to
respond.

50.
The Minister’s stance is bad in law in that in terms of the e.tv judgment which
requires consultation regarding the actual date of the ASO.

51.
Besides the specific requirements of consultation laid down by the Constitutional
Court, the general requirements are also well established. This, in Telkom SA Soc
Limited v Independent Com munications Authority of South Africa12” this court made
two points which are presently relevant:

51.1. First when an organ of state adopts a change of stance or changes
horses midstream it “had a duty to apply the fundamental principles of
hearing the other side (andi alteram partern) and ensure that all
interested parties were informed of the proposed change13”

12 [2021] ZAGPPHC 120 (8 March 2021).
13 at paragraph 35;
51.2. second ICASA was under a duty to “play open cards with the
stakeholders”14
51.3. These considerations apply with equal force to the pre sent
application.
51.4. Besides the Minister’s clear obligations, The Minister failed to
appreciate that providing a fair hearing is simply not for the benefit of
those potentially affected by a proposed decision. It is also “likely to
improve the quality and rationality of administrative decision making
and to enhance its legitimacy” . (See Joseph and others v City of
Johannesburg15)

THE SETTING OF THE ASO AT 31 MARCH 2025 IS IRRATIONAL

52.
The objectives regarding the achievement of Digital Migration are set out succinctly
in the e.tv judgment namely:

52.1. “The transition to digital television without causing millions of persons
to lose access to television on the analogue switch -off date ” e.tv .16
52.2. Steps must be taken to notify persons eligible for receipt of STB’s that
there would be “the imminent loss of access to television on a set date and
not a theoretical date in the future17;
52.3. A statement to the public of a need to register but without a deadline by
which to register is insufficient .18

53.
One of the critical questions to address to determine the ASO is how many people
will be left without access to television broadcasts if the ASO is allowed to proceed
on 31 March 2025.

14 at paragraph 42;
15 2010 (3) BCLR 212 (CC), 2010 (4) SA 55 (CC).
16 at paragraph 63;
17 at paragraph 67.
18 at paragraph 69.

54.
According to the most cons ervative estima tes provided by the Minister:

54.1. As of 21 February 2025, 391 513 households were registered for STB’s
but had not yet received them at the StatsSA ratio of 3.2 persons per
household, this translates to 1,252,841 people;
54.2. According to Sentech’s presentation to Parliament on 27 February
2025 , the numbers are higher than the Minister’s and they stand at 421,000
households which translates in 1,347 200 persons.
54.3. At another part of The Minister’s affidavit he states:
“Currently 447,000 households remain to be supplied with Government
sponsored STB’s which translates into 1,430 400 people. ”

55.
From the numbers reported by the Minister it is qu ite apparent that it is not his case
that these registered households will have STB’s installed by March 31, 2025. He
unequivocally states that such persons will receive STB’s by 31 December 2025 , yet
he persists in opposing this applica tion.

56.
In his answering affidavit he states that he finalised his plan sometime around 27
February 2025 , but he has not tendered any evidence to this court nor to the
applicants in that regard.

57.
The Constitutional Court in e.tv paragraph 44 stated that:

“The STB registration process and the deadline for registration form part of
the process leading up to the analogue switch -off” and that the duty of
consultation would need to address critical questions such as addressing “the
number of persons who qualify to rece ive STB’s who would like to register for
STB’s before the analogue switch -off date and how long it would take at the
current rate of installation for all household s that wish to register to receive
STB’s to be supplied with such .”19

58.
Instead of comply ing with that mandate the Minister’s attitude is that the process
cannot be held to “ransom” by latecomers.

59.
The Minister chooses to turn a blind eye to the following facts; which expose the
State’s inactivity during the period 2023 -2024 (contained in his answering affidavit) .

59.1. Only 45 450 STB’s were installed between August 2023 to October
2024;
59.2. Between August and December 2024, The Department only installed
15 740 STB’s (about 300 per month);
59.3. Even though The State knew that in August 2023 well over 400 000
households required STB’s (1280 000 people) before 31 December 2024, it
installed only 61 000 STB’s in a period of 18 months.

JUSTIFI CATION OF LIMITATION OF RIGHTS

60.
The respondents bear the onus to establish that any limitation of rights is reasonable
and justifiable. Moise vs Greater Germiston Transitional Council: Minister of Justice
and Constitutional Development Intervening (Woman’s Legal Centre as Amicus
Curiae)20. Yet on the Minister’s own version he has deliberately embarked on an
irrational process which will not achieve the objective identified by the Constitutional
Court to “trans ition to digital television without causing millions of persons to lose
access to television on the analogue switch -off date. As SOS and MMA explain in
their Heads , that can only be described as impermissible and retrogressive conduct
which could never be reasonable or justifiable in the circumstances.

19at paragraph 48.
20 2001 (4) SA 491 ( CC) at paragraph 31

61.
The Minister makes bold to say (contrary to the BDM Policy) that these people are
not his concern because he has obligations only to those who have registered. But
even on that approach there has been a demonstrable dereliction of duty as alluded
to in paragraph 59 above .

THE K wa- Zulu Natal (KZN) PRINCIPLE

62.
The applicants also rely on the KZN principle in asserting the unlawfulness of the
decision to proceed with ASO on 31 March 2025. The KZN principle flows from
KwaZulu -Natal Jo int Liaison Committee v Mec Department of Education21. In that
matter the Constitutional Court held that the decision -makers are bound to ho nour
undertakings lawfully and seriously made with an expectation of reliance at
paragraphs 37, 45. Reliance , accountability and rationality require government
officials to adhere to such u ndertakings.

63.
The Minister has over a decade repeatedly promised indigent households that ASO
will not sever their access to television access. The promise was made seriously
and lawfully. The KZN principle therefore obliges government officials not to renege
on such promises and to fulfil the legitimate expectations raised as a result thereof
regarding the constitutional rights to freedom of expression which includes the right
to receive information and the right to equality22

REQUIREMENTS FOR INTER IM RELIEF

64.
The requirements for interim relief are settled:


21 2013(4) 262 CC .
22 55.9 and 16 of the Constitution.
(a) A prima facie right;
(b) A reasonable apprehension of irreparable harm;
(c) Balance of convenience;
(d) Absence of an alternative relief . National Treasury vs Opposition to
Urban tolling Alliance23

65.
The test for inter im relief is not formalistic. The constitutional court described the
requirements for interim relief as “a handy and ready guide ”. Outa at para 45. A
court granting interim relief ultimately exercises a discretion resting on substantive
considerations of justice, Eskom Holdings Soc Ltd vs Vaal River Development
Association (Pty) Ltd24 and in a way that promotes the objects, spirit and purport of
the Const itution .25 At its heart the test for interim relief seeks to balance the injury
occasioned by granting or denying the interim relief , the merits of the final
application and the public interest. Ohio vs Environmental Protection Agency26

PRIMA FACIE RIGHT

66.
i.The applicants rely on four prima facie rights the first one being the right to
freedom of expression. The Minister does not deny that the applicants bear
this fundamental constitutional right in his answering affidavit. It cannot be
disputed t hat this right is implicated in this matter. Without interim relief the
ASO date violate s millions of South African’s freedom of information27.The
Constitutional Court affirmed in OUTA that: “If the right asserted in a claim for
an interim interdict is so urced from the Constitution it would be redundant to
enquire whether that right exists28.


23 2012 (6) SA 223 (cc) (OUTA) at paragraph 41 .
242023 (4) SA 325 (cc) (Vaal River) at para 281 .
25 .Outa at para 45.
26 603 U.S. 279 2024 at 10.
27 Section 16(1)(b) of the Constitution.
28 OUTA para 46.
ii. Secondly , the Minister does not deny that the right to equality is implicate d in
his answering affidavit. When government decides to differentiate between
people it must do so in a rational manner as the right to equality is guaranteed
in terms of Section 9(1) of The Constitution . Prinsloo v Van der Linde . 29 In
this case, the Mi nister’s plan of December 2025 as presented by Sentech
differentiates between households in five provinces where the Minister
mistakenly believes ASO has occurred and households in the remaining four
provinces . Such differentiation is irrational as it is b ased on a material error of
fact.

iii.Thirdly , the applicants rely on their prospects of success in Part B of this
application . The Constitutional Court has said that “[a] prima facie right may
be stablished by demonstrating prospects of success in the review” South
African Informal Traders Forum v City of Johannesburg30 . This Court can
only take a peek at the grounds of review to b e considered in Part B in order
to determine a prima facie view regarding the prospect of success. Having
done so, I hold the prima facie view that the applicants have exceeded the
threshold required for interim relief. I have concluded that “no serious doubt”
can be thrown on the grounds of review ” Simon NO v Aiv Operations of
Europe AB31, citing Webster v Mitchell32 and Gool v Minister of Justice .33

iv.Fourthly the right to an effective remedy is protected in the Constitution34. (see
,also W J Building & Civil Engineering Contractors CC v Umhlathuze
Municipality35. The fact of the matter is, by the time the reviewing court hears
Part B, even if it is heard on an expedited basis , there would be little it can do
to provide effective relief of the violations that would have been visited on the
affected households’ right to freedom of expression.


29 1997 (3) SA 1012 (cc) at para 25
30 2014(4) SA 371(cc) at para 25 .
31 1999(1) SA217(SCA) at 228 G -H
32 1948(1) SA 1186
33 [1955] 3 All SA 115 (c) at 121
34 Sections34, 38 and 172(1)(b) of the Constitution
35 2013 (5) SA 461 (KZD).
IRREPARABLE HARM

67.
It is not a matter for speculation that the public will suffer severe consequences and
even the Minister admits in his answering affidavit that if the analogue transmitters
cease operating , the “whole republic” will suffer prejudice. Despite this acceptance
he suggests that all currently registered househ olds will receive an STB by 31
December 2025 some nine months after the ASO date.

68.
This assumes that Sentech would maintain the present rate of installation which is
an unlikely eventuality considering the numerous factors causing delays in the STB
rollout including the shortage of STB’s themselves.
The harm is not just a temporary inconvenience. Each day without access to news,
public service announcements and educational programing results in irreversible
loss of knowledge, awareness and democratic p articipation.

69.
E.tv will suffer severe financial harm due to the fact that a third of e.tv viewers rely on
analogue broadcasting. I do not for that reason accept that e.tv has brought this
application merely in pursuant of its commercial interests.

70.
Between 25% and 32% of the SABC’s viewers rely on analogue television. The
chair of the Parliamentary Portfolio Committee explained that ASO as things stand
will be the “demise” of the SABC. She was referring to 31 December 2024. She is
the twelfth r espondent who has filed a Notice to abide.

71.
The SAB C is the fifth respondent, and it has also filed a notice to abide but at the
hearing of this application the SABC made an application to file an explanatory
affidavit which was opposed only by the Min ister. In the interests of justice, I granted
the application.

72.
The affidavit is deposed to by the Group Chief Executive Officer (GCE O) and I have
taken excerpts from paragraphs 17, 20, 21, 22, 28 and 29 to illustrate the precarious
positon SABC is already experiencing and the potential catastrophe that would befall
it should the ASO of 31 March 2025 be allowed to proceed. The GCE O has the
backing of the SABC Board :

“17. The SABC has been, and remains, committed to the successful
implementation of BDM programme. This commitment has been
demonstrated by the hasty vacating of the spectrum above 694 MHz in the
four provinces (i.e. KwaZulu -Natl, Eastern Cape, Western Cape and Gauteng)
as was gazetted the Minister.
20. The Premature analogue switch -off in the above -mentioned five
provinces resulted in a major loss of audiences and revenue to the SABC. I
refer the above Honourable Court to annexure “NC3” annexe hereto, which
reveals the SABC’s loss of audiences and revenue. These los ses have been
detrimental to the SABC. Likewise, the analogue switch -off gazetted to be
affected on 31 March 2025 will further jeopardise the SABC’s sustainability.
21. In light of the above facts and circumstances, the SABC Management
escalated their con cerns to the Minister, requesting consideration to postpone
the gazetted AS O date.
22. Regrettably , the SABC did not receive any positive response form the
Minister.
28. During the process of requesting to switch -off five provinces, some of
the figures pro vided to determine whether to authorise analogue switch -off in
a particular area were not accurate. This led to premature analogue switch off
of transmitters in areas where the communities were not yet ready to be
switched off. Unfortunately, this fact w as only realised after the analogue
switch off had happened, resulting in audiences being left without SABC
Television Services, and the SABC losing audiences and revenue.
29. Had accurate information been provided, the SABC would not have
switched off som e of the areas, and thus the SABC would not have
consequently lost audiences and revenue”

73.
From the above excerpt s the potential devastating effect of a premature ASO are
graphically illustrated. Needless to say, 31 March ASO would deliver a “killer punch”
to SABC and more importantly the harm caused would be irreversible or put
differently irreparable.

74.
As MMA a nd SOS make clear, community television stations will be dealt a severe
blow by an ASO date of 31 March 2025.

BALANCE OF CONVENIENCE

75.
Two factors are relevant to consideration of the balance of convenience.
Firstly, it is the harm to be endured by an applicant if the interim relief is not granted
and the applicant succeeds in obtaining final relief compared to the harm borne by
the respondent if the interim relief is granted and the applicant fails to obtain the final
relief.

76.
In this case if the a pplicants are not granted interim relief, but succeed on review,
millions of South A fricans would have been plunged into a television blackout and
free-to-air broadcasters would have suffered not only audience los ses but also
severe financial harm which ar e not capable of repa ir by the reviewing court.
If the applicants are granted interim relief but lose on review, no i rreparable harm
befalls the respondents. The Minister has failed to substantiate the allegation that
dual illumination has cost the State R1.3 billion despites being requested to do so.
The applicants do not comprehend the cost allegation as Broadcasters cover the
costs of analogue transmission. At best, The Minister appears to rely on a figure
spent by the State over the last decade.

77.
The Minister suggests that government has taken a decision not to fund dual
illumination any longer. There is no challenge by the applicants in this regard
therefore this Court cannot grant any relief.

NO ALTERNATIVE REMEDY

78.
It is common cause that the applicants have engaged with the Minister on several
occasions even though those engagements cannot be said to offer an alte rnative
remedy in any shape or form, The Minister is the only person who bears the duty to
set an ASO date and the applicant s cannot obtain appropriate relief except by
launching the present application against the Minister and related parties in light of
their having made it public that they are going forward with the ASO of 31 March
2025.

URGENCY

79.
There can be no dispute that this matter is urgent considering fast -approaching ASO
date of 31 March 2025 and its potential effect and consequences for mil lions of
South Africans. The Minister also does not contest the urgency of the matter.

CONCLUSION

80.
Having considered the conspectus of facts and submissions by Counsel , I make the
following order.

ORDER

1. The application is heard urgently and the applicant’s departure from the
Rules is condoned.

2. Pending the final determination of the relief sought in Part B of this
application:

2.1. The operation of the final analogue switch -off date of 31 March
2025, as announced by the Minister of Communications and Digital
Technologies on 5 December 2024, is suspended; and

2.2. The Minister of Communications and Digital Technologies is
interdicted from taking any steps to implement the switch -off of
analogue signals and ending dual illumination; and

2.3. Sentech SOC Limited is interdicted from taking any steps to
implement the switch -off of analogue signals and ending dual
illumination.

3. The Minister of Communications and Digital Technologies shall bear
the costs of Part A of this application, as follows:

3.1. The costs of the first applicant on the party -and-party scale,
including the costs of three counsel, each on Scale C; and

3.2. The costs of the second and third applicants on the party -and-
party scale, including the costs of two counsel, each on Scale C.




SELBY BAQWA
JUDGE OF THE GAUTENG DIVISION
HIGH COURT, PRETORIA


Date of hearing: 18-19 March 2025
Date of judgment : 27 March 2025

APPEARANCES:

COUNSEL FOR THE FIRST APPLICANT :
G MARCUS SC
M DU PLESSIS SC
A COUTSOUDIS
S PUDIFIN -JONES
X SHIBE -NKOSI
E COHEN

INSTRUCTED BY
NORTONS INCORPORATED ATTORNEYS 01166
54 MELVILLE ROAD
LLOVO
JOHANNESBURG

COUNSEL FOR THE SECOND AND THIRD APPLICANTS :
N FERREIRA
B WINKS

INSTRUCTED BY
ROSENGARTEN & FEINBERG ATTORNEYS
LEVAL, GROUND FLOOR
NORTH BLOCK, SOUTH WING
45 JAN SMUTS AVENUE
JOHANNESBURG

COUNSEL FOR THE FIRST RESPONDENT :
K TSATSAWANE SC
B DHLADHLA

INSTRUCTED BY
THE STATE ATTORNEY
GROUND FLOOR
SALU BUILDING
316 THABO SEHUME STREET
PRETORIA

COUNSEL FOR THE F IFTH RESPONDENT :
D MOLEPO

INSTRUCTED BY
THE STATE ATTORNEY
GROUND FLOOR
SALU BUILDING
316 THABO SEHUME STREET
PRETORIA