About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2017
>>
[2017] ZACC 17
|

|

Electronic Media Network Limited and Others v e.tv (Pty) Limited and Others (CCT140/16; CCT141/16; CCT145/16) [2017] ZACC 17; 2017 (9) BCLR 1108 (CC) (8 June 2017)

Links to summary

Heads of arguments

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 140/16, 141/16 and 145/16
In the matter
between:
ELECTRONIC MEDIA
NETWORK
LIMITED
First

Applicant
MINISTER OF
COMMUNICATIONS
Second

Applicant
SOUTH AFRICAN
BROADCASTING
CORPORATION SOC
LIMITED
Third

Applicant
and
E.TV (PTY)
LIMITED
First

Respondent
National
Association of
Manufacturers Of
Electronic
Components (First
Grouping)
Second

Respondent
SOS SUPPORT
PUBLIC BROADCASTING
COALITION
Third

Respondent
MEDIA MONITORING
AFRICA
Fourth
Respondent
MINISTER OF
TELECOMMUNICATIONS
AND POSTAL
SERVICES
Fifth

Respondent
INDEPENDENT
COMMUNICTIONS
AUTHORITY OF
SOUTH
AFRICA
Sixth

Respondent
UNIVERSAL SERVICE
AND ACCESS
AGENCY OF SOUTH
AFRICA
Seventh

Respondent
ASSOCIATION OF
COMMUNITY
TELEVISION –
SA
Eighth

Respondent
SOUTH AFRICAN
COMMUNICATIONS
FORUM
Ninth

Respondent
SENTECH SOC
LIMITED
Tenth

Respondent
CELL C (PTY)
LIMITED
Eleventh

Respondent
TELKOM SOC
LIMITED
Twelfth

Respondent
TELLUMAT (PTY)
LIMITED
Thirteenth

Respondent
NATIONAL
ASSOCIATION OF
MANUFACTURERS OF
ELECTRONIC
COMPONENTS
(SECOND
GROUPING)
Fourteenth

Respondent
Neutral
citation:
Electronic Media Network
Limited and Others v e.tv (Pty) Limited and Others
[2017] ZACC 17
Coram:
Mogoeng CJ, Nkabinde ADCJ, Cameron J, Froneman J,
Jafta J, Khampepe J, Mojapelo AJ, Pretorius AJ
and
Zondo J
Judgments:
Mogoeng CJ (first judgment): [1] to [88]
Cameron J and
Froneman J (second judgment): [89] to [163]
Jafta J (third
judgment): [164] to [210]
Heard on:
21
February 2017
Decided on:
8
June 2017
Summary:
section
192 of the Constitution — Independent Communications Authority
of South Africa Act — Electronic Communications
Act —
Broadcasting Digital Migration Policy — policy amendment —
Minister of Communications
separation of powers
— legality review — legality — consultation —
negotiation — rationality
ORDER
On appeal from the
Supreme Court of Appeal (hearing an appeal from the High Court of
South Africa, Gauteng Division, Pretoria):
The following order
is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Supreme Court of Appeal is set aside and replaced
with:
“1.
The appeal is dismissed; and
2.
e.tv (Pty) Limited, SOS Support Public Broadcasting Coalition and
Media Monitoring Africa are to pay the Electronic Media Network

Limited’s costs, including costs of two counsel.”
4. e.tv (Pty) Limited, SOS Support Public Broadcasting Coalition and
Media Monitoring Africa are to pay costs of the Electronic
Media
Network Limited in this Court, including costs of two counsel.
JUDGMENT
MOGOENG CJ (Nkabinde
ADCJ, Mojapelo AJ and Zondo J concurring):
[1]
Ours is a constitutional democracy, not a judiciocracy.
And in consonance with the principle of separation of powers, the
national legislative authority of the Republic is vested in
Parliament
[1]
whereas the judicial and the executive authority of the Republic
repose in the Judiciary
[2]
and the Executive
[3]
respectively.  Each arm enjoys functional independence in the
exercise of its powers.  Alive to this arrangement, all
three
must always caution themselves against intruding into the
constitutionally-assigned operational space of the others, save
where
the encroachment is unavoidable and constitutionally permissible.
[2]
Turning to the Executive, one of the core features of its
authority is national policy development.
[4]
For this reason, any legislation, principle or practice that
regulates a consultative process or relates to the substance
of
national policy must recognise that policy-determination is the space
exclusively occupied by the Executive.  Meaning,
the Judiciary
may, as the ultimate guardian of our Constitution and in the exercise
of its constitutional mandate of ensuring that
other branches of
government act within the bounds of the law, fulfil their
constitutional obligations and account for their failure
to do so,
encroach on the policy-determination domain only when it is necessary
and unavoidable to do so.
[5]
[3]
A genuine commitment to the preservation of comity among the
three arms of the State insists on their vigilance against an
inadvertent
but effective usurpation of the powers and authority of
the others.  Absent that vigilance in this case, a travesty of
justice
and an impermissible intrusion into the policy-determination
terrain would take place to the grave prejudice of the Executive or

even the nation.  For, that is bound to happen whenever the eyes
of justice are unwittingly focused on peripherals rather
than on the
fundamentals.
[4]
Driven by this reality, we were constrained to sound the
following sobering reminder:
“The Judiciary is but one of the three branches of government.
It does not have unlimited powers and must always be
sensitive to the
need to refrain from undue interference with the functional
independence of other branches of government.
. . .
Courts ought not to blink at the thought of asserting their
authority, whenever it is constitutionally permissible to do so,
irrespective
of the issues or who is involved.  At the same
time, and mindful of the vital strictures of their powers, they must
be on
high alert against impermissible encroachment on the powers of
the other arms of government.”
[6]
[5]
The determination of the issues must thus be grounded on and
steered by the ever-abiding consciousness of the import of the
principle
of separation of powers.  Permissible judicial
intervention is quite distinct from the Judiciary’s imposition
of its
preferred approach to the issues or what it considers to be
the best or superior choice in relation to matters that the political

arms are constitutionally mandated and therefore best-placed to
handle.  Properly contextualised, this is what this Court
sought
to convey in
Albutt
when it 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.”
[7]
[6]
It needs to be said that rationality is not some
supra-constitutional entity or principle that is uncontrollable and
that respects
or knows no constitutional bounds.  It is not a
uniquely designed master key that opens any and every door, any time,
anyhow.
Like all other constitutional principles, it too is
subject to constitutional constraints and must fit seamlessly into
our constitutional
order, with due regard to the imperatives of
separation of powers.  It is a good governance-facilitating,
arbitrariness and
abuse of power-negating weapon in our
constitutional armoury to be employed sensitively and cautiously.
[7]
That said, an issue that is incidental to policy-formulation
is at the heart of this litigation.  And it is whether one out

of at least nine key roleplayers in the broadcasting sector should
have been consulted again when the Broadcasting Digital Migration

Policy was being developed further.  It is in essence contended
that the alleged failure to consult in relation to
policy-determination
or considerations of rationality justify
judicial intervention and the setting aside of the policy.
Parties
[8]
Applicants are the Electronic Media Network Limited (M-Net),
Minister of Communications (Minister Muthambi or Minister) and South

African Broadcasting Corporation SOC Limited (SABC).  Some of
the respondents are e.tv (Pty) Limited (e.tv), National Association

of Manufacturers of Electronic Components (First Grouping), SOS
Support Public Broadcasting Coalition (SOS), Media Monitoring Africa

(MMA), Independent Communications Authority of South Africa (ICASA)
and Universal Service and Access Agency of South Africa (USAASA).
Background
[9]
The need to catch up with the latest technological
developments in broadcasting was identified by South Africa several
years ago.
Consequently, in 2005 the Minister of
Communications, Dr Ivy Matsepe-Casaburri, embarked on a consultative
process that culminated
in a 2008 policy decision in terms of which
television signals would migrate from analogue to digital.  That
shift would enable
the overwhelming majority of viewers, who
presently receive analogue television signals, to watch television in
the digital terrestrial
television environment through a
functionality known as set top boxes.  Set top boxes will be
required for the foreseeable
future until television sets with the
technology to unscramble digital signals are accessible to all.
These boxes will thus
be needed by the financially under resourced,
for as long as television sets with signal unscrambling
capabilities are
beyond reach.
[10]
e.tv was very much involved in the consultative process
triggered by Dr Matsepe-Casaburri and described the role it
played
in policy-formulation, as crucial.  Its strongly-held
position at the time was that the incorporation of a decryption
facility
in set top boxes was “wholly unsuited for free-to-air
television”.  It lamented its intended introduction

into a free-to-air terrestrial environment on the basis that it
“fundamentally changes the nature of free-to-air television

broadcasting” and “removes the control over access to
free-to-air television from the viewer/citizen to the broadcaster,

transmission provider or a third party”.  e.tv also said
decryption capabilities raised “critical constitutional,

economic, financial and competition issues”.  It decried
the exorbitant costs that would be occasioned by the incorporation
of
decryption capabilities into set top boxes.  It labelled that
policy “direction” as uncompetitive.  That
in its
view would effectively mean that “
government would be
subsidising the profits of a single
[conditional access]
provider
” in circumstances where conditional access is
unnecessary for the purposes of digital migration.  Finally,
e.tv maintained
that the basic set top box ought not to include
decryption capabilities so as to curb production and incidental
maintenance costs
particularly because it was a bridging mechanism
intended to allow analogue terrestrial television to receive digital
signals.
The SABC and M-Net agreed.  But, it is precisely
because this position of e.tv has in effect been adopted as policy by

Minister Muthambi, that e.tv is aggrieved and litigating.
[11]
Minister Matsepe-Casaburri formulated a policy that provided
for a system capable of disabling the usage of stolen set top boxes

outside South Africa.  The policy also provided that those boxes
were to have “capabilities to unscramble the encrypted

broadcast signals so that only fully compliant [set top boxes] made
or authorised for use in South Africa can work on the network”.

In sum, the policy provided for both a control system and decryption
capabilities.  What this entails is that set top boxes
will be
manufactured to incorporate technology that has the capabilities to
decrypt encrypted television signals.
[12]
In came Minister Dina Pule who also paid attention to this
policy in 2011.  She consulted stakeholders with a view to
amending
the policy.  And this she did in 2012.  The key
issues provided for in her policy amendment were that the control
system
had to be robust.  It had to ensure that “only
conformant” set top boxes can work in the electronic
communications
network in South Africa and that multiple set top
boxes were to be avoided for current and future free-to-air
broadcasting services.
Parties disagree on the meaning of this.
Some argue that set top boxes were to have decryption
capabilities, whereas others
hold a different view.  But this is
a side issue that need not derail us.
[13]
Minister Yunus Carrim took over the reins from Minister Pule.
He consulted on whether set top boxes “should have a control

capability or not”.  In 2013 he first held the Roundtable
Discussion with broadcasters and other roleplayers before
he
published policy proposals that were somewhat similar to the policy
of Minister Matsepe Casaburri.  More importantly,
he was
minded to distribute five million set top boxes that would have
decryption capabilities.  All parties, including
e.tv,
understood the consultative process to entail a solicitation of views
on whether government set top boxes were to have decryption

capabilities and whether it was a cost-effective proposition from a
taxpayer’s perspective.  Also, that the free to air

broadcasters who would choose to encrypt their signals and would need
to use the decryption capabilities built into those set top
boxes,
would have to pay for usage.
[14]
e.tv made a 180° about turn from its previous
strongly-held and fully-motivated position.  It supported the
incorporation
of decryption capabilities into set top boxes and was
pleased that “free-to-air broadcasters could now decide how
they wish
to manage their signal and whether that signal would be
encrypted.”  e.tv viewed as inconceivable any opposition
to
the proposed policy since broadcasters would now have “the
right to choose whether or not to encrypt their signals”.

SABC, the Association of Community Television South Africa (Act-SA)
and M-Net remained opposed to this policy “direction”.
[15]
When Minister Carrim’s term of office expired, Minister
Faith Muthambi was appointed.  At that stage, Minister Carrim

had not yet formulated a policy but had only solicited views on his
draft from interested parties.
[16]
Minister Muthambi pursued a policy “direction”
that is significantly dissimilar to that of Minister Carrim in
relation
to the production specifications of set top boxes.  She
formulated a policy that is inclined to exclude decryption
capabilities
from set top boxes whilst leaving it open to free-to-air
broadcasters to decide whether to encrypt their signals and if that
be
their preferred option, to do so with their own financial
resources.  The following statement issued on 13 March 2015 by
Minister
Muthambi’s department explains her position:
“Government has assured parliament that cabinet’s
endorsement of an inclusion of a ‘control system’ aims
to
protect multi-billion rand investment in the [set top boxes] from use
outside of South Africa and that broadcasters who seek
conditional
access related to encryption of their broadcast content may do so at
their own cost.  Our responsibility is to
protect the [set top
boxes] that government is making an investment in.  The issues
beyond the box or the encryption of the
signals is not our domain.
Those who want to encrypt the signal or content so that they give
rights to watch certain programs
can do that and they can make the
investment in that area.”
[17]
The Minister eventually published an amendment to the
pre-existing policy on 18 March 2015.  In line with this
statement,
the amendment rules out decryption capabilities as an
integral part of government-supplied set top boxes and provides for a
control
system.  To this, e.tv objects.
[18]
And the real nub of its opposition is that Minister Muthambi
did not consult them.  Had she done so, they would have had the

opportunity to in effect negotiate the possibility of a policy that
accommodates decryption capabilities in government set top boxes.

Their proposal amounts to virtually reverting to Minister
Matsepe Casaburri’s policy and Minister Carrim’s

proposals that provided for the inclusion of decryption
capabilities.  e.tv says this approach would facilitate public
access
to unpaid-for broadcasting and incentivise competition in the
industry.  Its attempt to open negotiations with the Ministry

was unsuccessful and it was displeased.
[19]
In pursuit of its preferred policy “direction”,
e.tv then applied to the High Court of South Africa, Gauteng
Division,
Pretoria, not only to interdict the Minister from
implementing the policy but to also have it reviewed and set aside.
That
application was unsuccessful.
[8]
The Supreme Court of Appeal was then approached on appeal.  And
e.tv succeeded.
[9]
The SABC, the Minister, and M-Net have now each brought an
application to this Court to challenge the decision of the Supreme

Court of Appeal.
Issues
[20]
The issues to be resolved are whether:
20.1 Minister Muthambi had the legal authority to make the
policy determination now being challenged or exceeded her
powers.
20.2 The Minister was required to and did consult in terms of section
3(5) of the Electronic Communications Act
[10]
(ECA).  If not,
20.3 Section 3(6) of the ECA also exempts the amendment of policies
from consultation.
20.4 The policy-formulation process and its content are irrational.
Leave to appeal
[21]
The SABC, Minister and M-Net each seeks leave to appeal
against the decision of the Supreme Court of Appeal that invalidated
and
set aside the Minister’s Broadcasting Digital Migration
Policy amendment.  e.tv, SOS and MMA are opposing.
[22]
Since this matter has its genesis in e.tv’s challenge to
the Minister’s exercise of public power vested in her in terms

of the ECA, these applications trigger the constitutional principle
of legality into operation.  And it is safe to hold that
the
Supreme Court of Appeal was correct to conclude that the Minister’s
policy amendment could properly be reviewed under
the principle of
legality and that it was unnecessary to deal with the Promotion of
Administrative Justice Act
[11]
as the basis for review.
[23]
Additionally, government and all key stakeholders in the
broadcasting industry agreed in principle that the time had come for
broadcasting
to migrate from an analogue terrestrial television
environment to the digital terrestrial television setting about a
decade ago.
The nation has since been anxiously waiting for
policy facilitation.  A challenge to the validity of that
policy-determination
raises an arguable point of law of such general
public importance that it deserves the attention of this Court.
[24]
Besides, applicants have reasonable prospects of success and
it is in the interests of justice that leave to appeal be granted.
Legality
[25]
One of the challenges mounted against Minister Muthambi’s
policy is that she lacked the legal authority to make it or exceeded

her policy-making powers.  e.tv contends that the impugned
provisions of the policy essentially fall within the exclusive
powers
of ICASA.  Also, that the Minister sought to make a policy that
binds USAASA although a policy cannot in law have a
binding effect.
To the latter end, e.tv relies on
Harris
.
[12]
[26]
It bears repetition that policy-formulation is the exclusive
domain of the executive arm of the State.  The judicial arm
would
do well to resist the enticement or urge to inadvertently, yet
impermissibly, encroach on the Executive’s national
policy determination
space on some elasticised rationality or
other constitutional basis that purportedly justifies judicial
intervention.  Judicial
intrusion in matters of
policy formulation is permissible when policy-determination
constitutes a disregard for the law or
Constitution.  This would
be the case for instance where the rule of law or principle of
legality is not observed, such as
where the Executive purports to
exercise the power it does not have in the name or under the guise of
policy determination.
Courts are thus empowered to
intervene and even set aside policy but only under exceptional and
separation of powers-sensitive
circumstances.
[13]
Courts must always remember that ministerial policy-formulation
fundamentally derives from section 85(2) of the Constitution

which provides in relevant part:
“The President exercises the executive authority, together with
the other members of the Cabinet, by––
. . .
(b)
developing and implementing national policy.”
[27]
So, foundational to any other policy-formulation exercise the
Minister, as a member of Cabinet, might have to embark upon, is
section
85(2)(b) of the Constitution.  She enjoys the
constitutional entitlement to exercise executive authority by
“developing
and implementing national policy”.  This
is an all-encompassing constitutional policy determination
authority.
And section 3(1) of the ECA empowers the Minister to
“make policies on matters of national policy applicable to the
[Information
Communications and Technology] sector” in relation
to “the application of new technologies pertaining to . . .
broadcasting
services”.  The reference to “national
policy” in section 3(1) of the ECA finds resonance with
“national
policy” in section 85(2)(b) of the
Constitution.  There thus ought to be no disputation about where
the Minister’s
original policymaking authority derives from
even with regard to the broadcasting digital migration policy.
It is a constitutional
power not to be lightly dislodged by a clamour
for consultation, actuated by commercial interests masked with the
appearance of
the advancement of public interest, ensuring fairness,
competition and a diversity of views broadly representing South
African
society.
[28]
The Minister made the impugned policy-determination in terms
of the powers vested in her by section 3(1)(d) of the ECA which
provides:
“
3 Ministerial policies and policy directions
(1)
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––
.
. .
(d) the application of new technologies pertaining to electronic
communications services, broadcasting services and electronic

communications network services.”
[29]
The power to make policies on matters that apply to the
Information Communications and Technology sector in relation to the
application
of new technologies relevant to broadcasting services,
does in my view extend to set top boxes.  The latter are those
new
technologies.  And their proposed specifications in relation
to how they would apply to free-to-air broadcasting services fall

well within the legal authority of the Minister to provide guidance
on.  She is thus not usurping any aspect of ICASA’s

constitutional powers “to regulate broadcasting in the public
interest, and to ensure fairness and a diversity of views broadly

representing South African society”
[14]
.
The Minister formulated a policy that allows free-to-air broadcasters
to encrypt their signals if they so wish, provided
they bear the
costs of doing so.  That also falls within her wide
discretionary policy-making powers.
[30]
National policy is not inconsequential.  If it were, the
Constitution would not have made express provision for it.  It

is intended to be an essential governance and service
delivery-enabling tool in the hands of the Executive.  And
broadly
speaking, policy is supposed to be a compendium of guidelines
or principles on which decisions for the execution of an
institution’s
mandate or vision are to be based.  It
essentially ought to give direction or point to the cause of action
to be followed.
As is the case with all other national
policies, Minister Muthambi must have intended hers to be taken
seriously by agencies and
all other functionaries who needed guidance
or direction on broadcasting digital migration.  This is an
important factor to
bear in mind in determining whether she sought to
bind USAASA or usurp the constitutional powers of ICASA.  And it
is within
this context that the words used in the impugned clauses
are to be understood.
[31]
The primary basis for e.tv’s contention that the policy
seems to have a binding effect and was so intended is the use of the

word “shall” in paragraph 5.1.2(B).  This
construction explains why
Harris
is said to be applicable to
this policy.  But
Harris
is distinguishable from this
case.
[32]
The impugned portion of the policy in
Harris
was
accompanied by clauses that left an objective reader with no option
but to conclude that the Minister’s policy was meant
to bind
Members of the Executive Council (MECs) responsible for education in
our provinces.  It could not reasonably be interpreted
in any
other way.  Here, paragraph 5.1.2(A) reads: “[set top box]
control system in the free-to-air [digital terrestrial
television]
will
be non-mandatory”.  And paragraph 5.1.2(B)
reads that “the [set top boxes] control system for the
free-to-air [digital
terrestrial television] [set top boxes]
shall
not have capabilities to encrypt broadcast signals for the subsidised
[set top boxes]”.  But paragraph 5.1.2(C) provides
that
individual broadcasters “
may
at their own cost make
decisions regarding encryption of content”.  Additionally,
throughout the document, the words
“shall”, “will”
and “may” are used interchangeably.
[15]
And the policy is said to be intended to provide a “framework”
[16]
that would “inform and guide”
[17]
the process and aims to “establish a policy environment within
which the broadcasting digital migration is implemented”.
[18]
[33]
All of the above have the cumulative effect of demonstrating
that the policy was neither meant to bind nor does it have a binding

effect on ICASA or USAASA.  Its language cannot therefore be
construed as peremptory merely because of the use of the word
“shall”
in clause 5.1.2(B).
[34]
More telling though are the provisions of section 3(4) of the
ECA.  Unlike in
Harris
where the insulation of provinces
or MECs from “the binding effect” of a ministerial
policy-determination, was inferential
and arguably uncertain
especially to non-lawyers, here the position is different.
Remember, the Minister of Education’s
age limitation policy in
Harris
was implemented by the MEC in the affected province.
In all likelihood the MEC did not want to flout what appeared to be a

clearly binding policy of the Minister.  In this case, section
3(4) has an expressly insulating effect on whatever
policy-formulation
the Minister might come up with.  It is the
statute versus policy.  The same law that binds both the
Minister and the
relevant agencies provides essentially that USAASA
may “consider” the impugned policy.  It is known not
to be
binding in terms of the law that gives ICASA or USAASA the
power to be exercised with reference or due regard to that policy.

In other words, before they can have regard to or apply the impugned
policy in terms of their statutory powers, the agencies must
first
determine what that self-same statute says about the binding effect
of that policy.  And the statute makes it abundantly
clear that
they need only consider the policy.
[35]
It bears repetition that in
Harris
, the language of the
policy was consistently peremptory.  The objective was to extend
a rule made in terms of the Schools
Act to independent schools.
And the Minister of Education expressly admitted that he intended to
make a binding policy and
fought hard to defend its binding effect.
That is not the case here.  Minister Muthambi has made it
abundantly clear
that her policy is not binding and that it is
nothing more than a policy choice or preference or statement.
And section 3(4)
of the ECA constitutes an express and crucial
neutralising factor in relation to the possible binding effect of the
policy, contended
for by e.tv.  This policy is thus not a
binding rule or edict but a set of guiding principles.  In line
with
Arun
the policy amendment is “consistent with the
operative legislative framework”
[19]
and falls within the Minister’s powers.  It is therefore
not
ultra vires
but valid.
[20]
Consultation
[36]
The procedural challenge to the policy is two-pronged.
First, that the Minister failed to comply with the consultation
requirements
set out in section 3(5) of the ECA.  Second, that
she made her policy after following an irrational procedure.
The basis
for the challenge is essentially that on both fronts, the
requirements for consultation were not met and that all the Minister
did was issue a policy.  A proper resolution of this issue
requires that we first reflect on how the consultative process has

unfolded over the years in relation to the various iterations of
policy drafts.  But first, some observations.
[37]
Given the prominent role of consultation in the determination
of this matter, it behoves this Court to remind itself and the public

of the rationale behind any consultative process.  Consultation,
as distinct from negotiations geared at reaching an agreement,
is not
a consensus-seeking exercise.  Within the context of national
policy development it must mean that a genuine effort
is being made
to obtain views of industry or sector roleplayers and the public.
In other words, a genuine and objectively
satisfactory effort must be
made to create a platform for the solicitation of views that would
enable a policymaker to appreciate
what those being consulted think
or make of the major and incidental aspects of the issue or policy
under consideration.
People or entities must be left to express
themselves freely on as wide a range of issues, pertinent to a policy
proposal, as possible.
The standpoints of interested parties,
who want to have their views taken into account, must thus be allowed
to reach a policymaker.
But, consultation fulfils a role that
is fundamentally different from negotiation.
[38]
Generally speaking, where there are two opposing positions and
a party aggrieved by the ultimate policy-determination has had the

opportunity to express itself properly in favour of each of the
diametrically opposed possibilities, another round of consultation
on
the ultimate policy standpoint can hardly ever serve any legitimate
purpose.  If it is the first policy “direction”
it
prefers, then it is covered.  If it is the second, it would also
have been appropriately accommodated in terms of process.

Consultation is not an inconsequential process or a sheer formality,
particularly in relation to national policy development.
It
exists to facilitate a festival of ideas that would hopefully provide
some enlightenment on the stakeholders’ major perspectives
so
that policy-formulation is as informed as possible for the good of
all, not some.
Alleged
non-compliance with section 3(5)
[39]
Two points must be made upfront.  One, the requirements
of the consultative process envisaged by section 3(5) of the ECA and

procedural rationality had already been met when Minister Muthambi
amended the policy in 2015.  Two, this approach or conclusion

renders it unnecessary to resolve issues around the applicability or
otherwise of section 3(6) of the ECA to the amendment of policies.
[40]
e.tv contends that ICASA, USAASA and interested persons should
have been but were not consulted.  All this is based on the
provisions of section 3(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
(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
.”
This reinforces the
reality that the main and arguably sole repository of the
constitutional and statutory authority to formulate
broadcasting
policy is the Minister.  She initiates consultation “in
order to obtain the views of interested persons”
like e.tv.
[41]
This subsection stipulates that the Authority, ICASA, and the
Agency, USAASA, be consulted when a policy is being formulated.

Though cited as parties to this litigation, they have decided not to
oppose the Minister’s application to protect the policy
from
being set aside by reason of the alleged non-consultation or
invalidity.  It must thus be reasonably assumed on their
behalf
that they find nothing wrong with the policy-formulation process as
it affects them, and even as regards compliance with
the provisions
of section 3(5) of the ECA.
[42]
Section 3(5) requires no more than that the views of
interested persons be obtained.  This is to be done by
publishing the
text of the draft policy by notice in the Gazette.
Interested persons are to submit written submissions “in the
manner
specified in such notice in not less than 30 days from the
date of the notice”.  This is a procedure a Minister must

follow when she initiates a policy development process in terms of
the ECA.  It would be a misinterpretation of section 3(5)
and a
misunderstanding of the concept of consultation if one were to
approach it as if it is intended to allow parties to exhaustively

discuss or iron out divergent views until some mutually acceptable
basis to proceed from, is found.  e.tv and other interested

persons only have the right to ensure that their voices are heard
during the consultation period before a final policy determination

is made.
[43]
The stipulation that the views of interested persons are to be
submitted in writing rules out the possibility of a legal entitlement

to insist on some kind of a negotiated settlement on any major or
incidental aspect of the policy.  Interested persons ought
to
speak exhaustively on any aspect of the policy when presented with
the section 3(5) opportunity.  In this case, their written

submissions would have had to include all key scenarios or
possibilities relating to “what if” decryption
capabilities
are ultimately excluded to save costs, as was initially
contended for by e.tv.  More importantly, e.tv went all out to
demonstrate
why inbuilt decryption capabilities would be
uncompetitive, too costly and most inappropriate, in response to the
possibility raised
by Minister Matsepe Casaburri to include
those capabilities.  Similarly, it should like SABC, M Net
and Act-SA
have spoken just as strongly and exhaustively to rule out
the possibility of a policy that is different from Minister Carrim’s

proposals.  This is so because the reasonable possibility of the
Minister being persuaded by other broadcasters to go in the
direction
opposite to the draft has always loomed large.  And no provision
is made in the ECA for another round of “written
submissions”
within another period “not less than 30 days from the date of
the notice” of a new text or changed
position.
[44]
What cannot be taken out of account is that the process of
formulating the broadcasting digital migration policy, that would
apply
to or facilitate a transition from an analogue terrestrial
television system to a digital terrestrial television environment,
was
never really finalised.  Meaning, a point was never arrived
at when a policy was made and applied to regulate migration from

analogue to digital.  All inputs made to the various iterations
of policy proposals to help shape a policy that could be implemented,

are therefore important and must be taken into account for any
concern raised to be properly understood.  This would help
us
determine whether it was necessary to consult again regard being had
to previous consultative processes and the particular issue
over
which consultation is currently being sought.  In other words,
for the purpose of determining whether Minister Muthambi’s

policy amendment attracted the need to consult, we must consider the
opportunities parties were afforded to be heard, especially
by
Minister Carrim.
[45]
Interested parties, including e.tv, have over the years had
the opportunity to express their views and preferences on various
versions
of the broadcasting digital migration policy-formulation.
e.tv has had all the opportunities it could ever have legitimately

wished for, to influence the development of the policy on its two
sharply opposing ends.  We are now virtually grappling with

e.tv’s own battle of ideas.  Its position is particularly
striking in that it has been able to articulate quite forcefully
at
times persuasively, two diametrically opposed viewpoints.
Initially, against the inclusion of decryption capabilities
in set
top boxes in order to save the taxpayers’ money, avoid
enriching individual entities at government expense and promote

competition, but later in favour of the inclusion of decryption
capabilities in government-supplied set top boxes.  The latter

is now said to be done for the promotion of competition and the
advancement of the best interests of the public by ensuring that

there is fairness and diversity of views broadly representing South
African society.
[21]
[46]
The reality is that the issue of costs for inbuilt decryption
capabilities was open to be addressed by those interested persons or

stakeholders who deemed it necessary to deal with them in whatever
way they saw fit when Minister Carrim published his policy
proposals.  e.tv could, knowing the strong views held by all
other broadcasters and in response to the Carrim policy draft,
have
proposed that costs, to be paid by free-to-air broadcasters who would
prefer to encrypt and therefore use the inbuilt decryption

capabilities, be paid in advance.  The costs issue is a
specific, noteworthy but peripheral aspect of the Broadcasting
Digital
Migration Policy.  Importantly, encryption is an option
open to e.tv to pursue if it is so minded.  It would be
extremely
difficult to explain why e.tv believes that the opportunity
to make written submissions to the effect it now proposes was not
open
to it to make in response to Minister Carrim’s
proposals.  This is so because all other broadcasters fought
strenuously,
at the Roundtable Discussion and through their written
submissions, to have decryption capabilities excluded in order to
save the
taxpayers’ money.
[47]
It was then open to e.tv to make the same submissions it seeks
to make in defence of Minister Carrim’s proposals particularly

because there was no guarantee that the final version would be the
same as the proposals.  That this is an avenue known by
e.tv,
just like other broadcasters, to have always been available to it, is
manifestly evident from its approach to Minister Matsepe-Casaburri’s

draft policy that was significantly different from Minister
Muthambi’s amendment.  There, e.tv dealt extensively with

costs implications attendant to the proposed policy position.
[48]
The only real difference is thus that e.tv failed to take
advantage of the opportunity it had to address that reasonably
foreseeable
possibility.  Had it done so, it would have sought
to convince Minister Carrim and by extension Minister Muthambi to
retain
a feature of the policy that she has decided to drop.
The issue of users having to bear the additional costs occasioned by

decryption capabilities was by implication always on the table in the
event of a decision being taken that is similar to the one
initially
advocated for by e.tv.  This is evident from the representations
made by all other broadcasters to Minister Carrim’s
policy
proposals.
[49]
To e.tv’s knowledge, SABC and M-Net have always been
opposed to the incorporation of decryption capabilities into
government-supplied
set top boxes.  They expressed their
opposition in very clear and strong terms to Minister Carrim’s
predisposition to
government-supplied set top boxes that have inbuilt
signal unscrambling capabilities.  One of the major bases
on which
SABC and M Net opposed the inclusion of those
capabilities was that it would drive up the costs of the service and
would amount
to subsidising commercial broadcasters.  In
particular M Net said:
“The proposed [Broadcasting Digital Migration] policy
amendments even agree with this assessment that it is a Pay TV
technology,
when they state that ‘to avoid subscription
broadcasters unfairly benefitting from the [set top box] control
system, Government’s
investment in the [set top box] Control
System will be recovered from those subscription broadcasters that
choose to make use of
the [set top box] Control System . . . .’
This raises the policy question of why government is funding the
inclusion of an expensive Pay TV technology in the subsidised
[free-to-air]
[set top box], and requiring its inclusion in the
retail [free-to-air] [set top box], thereby increasing the cost for
manufacturers
and consumers when there is no discernible public
interest benefit for doing so.
”
[50]
Not just SABC and M-Net but also
Act-SA made it abundantly clear that they opposed Minister Carrim’s
proposals particularly
as they related to decryption capabilities and
costs.  By the way, Act-SA represents all community television
licensees in
South Africa that were in existence as at 3 January
2014.  They were Soweto TV, Cape Town TV, Bay TV, One KZN
TV, Tshwane
TV, North West TV and Bara TV.  It is best to
reproduce part of their representations dated 3 January 2014 fairly
extensively:
“4.1
A
ct
SA
participated in the Roundtable Discussion convened by the Minister in
September 2013 on the issue of [set top box] control.
4.2 During this process, Act SA joined the SABC, the emerging
manufacturers and Multichoice in opposing the inclusion of [set
top
box] control in the free to air set top box.
The
only party which supported the inclusion of [set top box]
control was e.tv.
4.3 Act-SA’s reasons for opposing the inclusion of a [set top
box] control system were briefly as follows:
4.3.1
The encryption of all free to air services and the
deployment of a
[set top box]
control
or conditional access system to decrypt or unscramble these services
is simply another kind of E-Toll!  It takes away
an individual’s
right to free and unrestricted access to free to air
broadcasting services;
4.3.2
The implementation of
[set top box]
control
will result in the end of ‘free to air’
television as it is available to viewers in South Africa today;
4.3.3 This system will impose a fundamental change in how the South
African public accesses public, commercial and community free to air

television;
4.3.4
The system benefits only the chosen few
who have vested interests in a short term technology which has no
added value to the poor
and will be
out dated before it even starts, because of delays in the
[digital terrestrial television]
roll
out programme;
4.3.5
The system is only for commercial gain and is not
sustainable long term
;
5
When we consider that every party to the Roundtable Discussion
(other than e.tv) was opposed to the inclusion of [set top box]
control
, we are surprised at the language which the Minister
presented to Cabinet and the language which now appears in the
proposed amendments.
. . .
10.1
The Department should not make decisions to the detriment of
the poor and at the expense of the taxpayer.
10.2 We have never supported [set top box] control, it is not in the
best interest of the country and overall objectives of [digital

terrestrial television] will be compromised.
The proposed
amendments will only further individual greed and personal wealth to
the detriment of the poor and South Africans at
large
.
. . .
10.4 If anyone must decide on [set top box] control, it should be the
free-to-air TV broadcasters, which includes the community
TV
broadcasters represented by Act SA.
10.5 Act SA wants to ensure maximum access to free-to-air
broadcasting services, rather than add expenses and restrict
individuals
from free information.”
[51]
The plight of the poor, and the
costs for the inclusion of decryption capabilities to the taxpayer
ranked very high on the list
of the grounds for opposing
Minister Carrim’s proposals.  All other broadcasters
argued quite forcefully that it
was for the advancement of the
commercial interests of only e.tv to include decryption capabilities
and not at all in the best
interests of the poor and broader public.
All this was again raised as early as 3 to 5 January 2014.  e.tv
had all the
notification or warning it could ever have needed that
other broadcasters rejected the inclusion of decryption capabilities
and
that the costs burden they would impose on the taxpayer was high
on the list of the grounds for opposition.  So strongly did
the
other parties feel about the Carrim proposals that there was even a
veiled threat of litigation in the event of these policy
proposals
not being changed.
[52]
It has thus always been within the reasonable contemplation of
the parties that Minister Carrim might be persuaded to keep the
policy
proposals unchanged or dump inbuilt decryption capabilities in
line with the views of the overwhelming majority of broadcasters
and
with due regard to the enormous cost burden it would place on the
taxpayer.  The exclusion of decryption capabilities
would, in
line with e.tv’s initial approach and, as consistently argued
by all other broadcasters, relieve government of
having to fund
decryption technology.  For, inclusion, does in e.tv’s own
words, effectively amount to subsidising profits
of a single
conditional-access provider.  These contentions provided the
bases for a reasonably foreseeable deviation from
those proposals
considering the production and administrative burden that would come
with that unscrambling technology and the
recovery of costs from
users.  The departure from the Carrim proposals could also be
influenced by the fact that decryption
is, according to e.tv’s
initial position, consistently shared by all other broadcasters, not
necessary for purposes of digital
migration.  In any event, this
policy facilitates a bridging mechanism that will not last forever.
[53]
In substance, there really is nothing new about the debate
held out, by e.tv, to be new.  The costs issue was thoroughly
ventilated
in response to Minister Carrim’s policy proposals by
others like SABC, Act-SA and M-Net and e.tv could have done
likewise.
Minister Muthambi has virtually gone back to the
position that e.tv and all others unanimously and eloquently argued
for at first,
as a sensible and cost-effective policy position.
It has always been a reasonable possibility that loomed large that
decryption
capabilities might be left out.  To the knowledge of
all parties, the live wire that has always run through all iterations

of broadcasting digital migration policy initiatives is: to have or
not to have the expensive decryption capabilities built into

government supplied set top boxes.  For these reasons, by
dropping or leaving out decryption capabilities the Minister
was
doing what was reasonably foreseeable or within the reasonable
contemplation of the parties.  And that reasonably foreseeable

possibility ought to have attracted comment from e.tv.  It
chose, in the face of fierce opposition by other broadcasters to
the
Carrim proposals, not to seize the opportunity beyond expressing its
satisfaction with the infusion of decryption capabilities
into set
top boxes and dismissively stating that it was inconceivable that
anybody would oppose them.  For this it has itself
to blame.
[54]
But why so much attention to e.tv’s desire to reposition
itself for greater commercial benefit whereas M-Net, Act-SA and SABC

are left unscathed?  It must be said that M-Net, unlike e.tv,
does not at all depend or seek to rely on government resources
or set
top boxes in the furtherance of its private commercial interests.
It funds its chosen business model.  And so
must e.tv fund its
preferred new business plan.  It is concerning that it seeks to
ride on the back of a government project
to realise its
entrepreneurial vision.  Just as M-Net, Soweto TV, North West
TV, and Cape Town TV, for example, do not seek
to derive assistance
from the State through the broadcasting digital migration policy in
the furtherance of their business interests
so should it be with e.tv
and all others.  It is through those lenses that the
competitiveness contended for must be viewed.
The effect of the
Muthambi policy is to virtually maintain the status quo.  None
of the broadcasters, including free-to-air
broadcasters, would be
required to do any more than they have previously been required to
do.  Nor would any be deprived of
any advantage or privilege
currently enjoyed in relation to access to their viewership and
profit-making opportunities.
[55]
e.tv would want to be able to harvest more profit, in the same
way it accused others of seeking to do in its representations to the

Minister Matsepe-Casaburri policy proposals.  This it seeks to
achieve by having decryption capabilities incorporated into
the
government-supplied set top boxes designed to benefit financially
challenged households.  This is the same government

subsidisation of profits of a single conditional access provider, it
complained about in its comments on the Minister Matsepe Casaburri

policy proposals.  It has in effect branded the position it
previously embraced and fought for as irrational.  What it

considers to be rational now, is what it previously said was
unconstitutional and presumably irrational.
[56]
If SABC has been involved in some acts of corruption or in
some uncompetitive practices, as suggested, that must be addressed.

That conduct however requires a separate legal process altogether.
For, regardless of who is involved, wrongdoing must not
be condoned.
Whatever its merits or demerits, actual or perceived malpractice
should not be allowed or used to cloud the
issues in this
litigation.  Long before the alleged collusion with Multichoice
Propriety Limited took place, SABC and M Net
have been
consistently opposed to the inclusion of decryption capabilities into
government set top boxes.  Their stance does
not therefore
appear to have been birthed by the alleged uncompetitive deal with
Multichoice.
[57]
Unlike other broadcasters who no doubt also have some
commercial interests in the direction taken by the broadcasting
digital migration
policy, e.tv’s actions threaten to stall
unduly the full-scale rolling-out of set top boxes for which the
nation has been
waiting for about ten years.  It follows that
roleplayers and interested persons have had ample opportunities to
air their
views on various policy proposals by several Ministers of
Communications especially those of Minister Carrim in response to
which
all other broadcasters argued strongly for the dumping of
decryption capabilities because of their cost implications to the
taxpayer.
The requirements of section 3(5) had thus been fully
met, when Minister Muthambi amended the policy.
[58]
We are dealing with one and the same Ministry of
Communications here.  The development of the Broadcasting
Digital Migration
Policy is a project of that Ministry.  It thus
ought not to matter who the incumbent happens to be at any stage of
the policy
development process.  In this regard, Minister Carrim
began the consultative process and broadcasters submitted their
representations
between 3 and 5 January 2014.  Minister
Muthambi was appointed to that portfolio on 25 May 2014,
just under
five months after the parties had communicated their views
to the Ministry.  As was to be expected, she took it upon
herself
to complete the unfinished business of her immediate
predecessor.  The consultative process facilitated by Minister
Carrim
catered fully for the gathering of whatever views broadcasters
and other interested persons might have had on any aspect of the

policy proposals.  For this reason, whatever preliminary views
the Ministry held at the time the proposals were published
for
comment, it must have been known by all that they were not
unchangeably fossilised.  The Ministry was always at large
to
make a policy decision that is radically different from the
proposals, depending on how persuasive it found any of the
representations
to be.  And this was done in a way that meets
all the section 3(5) consultation requirements.
The effect of the
Minister’s selective consultation
[59]
The Minister solicited the views of some undisclosed persons.
In the policy development process the Minister may if she so
wishes
consult some interested persons or experts on broadcasting digital
migration policy.  Broadly speaking, the Minister
may seek more
enlightenment on any aspect of the policy-formulation exercise beyond
the parameters of the prescribed consultative
process.  The
legislation neither forbids nor regulates her zest for clarification
or additional information from whomsoever
it might be beneficially
sourced.  This is so because some latitude or a reasonable
measure of flexibility ought to be allowed
in the exercise of
executive authority, without effectively undermining the values of
openness and accountability.  And this
extends to the
development of policy although she was under no obligation to
consult.
[60]
Although the Minister’s consultation of some undisclosed
stakeholders potentially taints the process in some way, it does not

invalidate the policy.  It needs to be reiterated that it is so
because she is free from any constitutional constraints in
the
information gathering exercise for the purpose of
policy-formulation.  Her disclosure or non-disclosure does not

necessarily undermine any broadcaster or interested person’s
right.  e.tv could have but chose not to pursue readily

available openness and accountability enforcing mechanisms to
achieve that objective.
[22]
More would be required to conclude that the only reasonable inference
to draw from the Minister’s ill advised
and unfortunate
non-disclosure is that her consultation of some interested persons,
necessarily redounded to the advantage of those
who were consulted at
the expense of the unconsulted.  Her consultation with some
stakeholders did not, without more, give
e.tv the right to also be
consulted, considering the opportunity it also had to oppose any
change to the Carrim proposals.
[61]
But this does not mean that a blind eye is to be turned to her
concern evoking evasive and “suspicious” responses

or lack thereof to pertinent questions raised by e.tv.  For, we
live in a constitutional democracy, whose foundational values
include
openness and accountability.  It is thus inappropriate for the
Minister to not have volunteered the identities of
those she
consulted with and what the consultation was about, as if she was not
entitled to solicit enlightenment or did so in
pursuit of an
illegitimate agenda.  This conduct must be frowned upon and
discouraged.  It does not however constitute
the necessary and
unavoidable constitutional basis for judicial intrusion.
Procedural
irrationality
[62]
A separate and presumably alternative procedural attack on the
policy is based on the following principle from
Democratic
Alliance
:
“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 everything done in the process of taking that decision,

constitutes means towards the attainment of the purpose for which the
power was conferred.”
[23]
[63]
This was aptly elaborated on and reinforced in these terms by
Motau
:
“The principle of legality requires that every exercise of
public power, including every executive act, be rational.
For
an exercise of public power to meet this standard, it must be
rationally related to the purpose for which the power was given.

It is also well established that the test for rationality is
objective and is distinct from that of reasonableness.”
[24]
[64]
On the strength of this principle e.tv contends that the
potential impact of the decryption amendment on it and the public
required
of the Minister to consult them in order to take a rational
policy decision.  It essentially argues that its input on how it

would cover the additional costs occasioned by the inclusion of
decryption capabilities in the government-supplied set top boxes
was
critical to the rationality of the Minister’s decision, that
she took without first finding out what e.tv’s position
was.
For this reason, e.tv argues that the Minister’s policy
decision was procedurally invalid or irrational.
[65]
Consultation that meets the requirements of section 3(5) is
not inferior to that which flows from principles articulated in
Motau
,
Albutt
and
Democratic Alliance.
[25]
Both processes owe their legitimacy and completeness to the
Constitution.  None of them is exempt or detached from the

spirit, objects and purport of our Constitution or Bill of Rights.
We do not therefore have classes or categories of consultation
–
the inferior and unconstitutional and the constitutionally-inspired
one.  The consultative process must always be
rational and
constitutional.  If it satisfies the demands of section 3(5),
then that would be so precisely because it
is rational.  This
section does in reality enable the Minister to obtain views from
specified or interested parties in terms
of the
constitutionally-sourced policy-formulation process.
[66]
To suggest that a consultative process that meets the full
rigor of the statutory requirements, might still not meet the
requirements
of, or needs some augmentation from, a
constitutionally-inspired procedural rationality principle, can only
derive from a misunderstanding
of our constitutional jurisprudence.
No law may be said to have sufficiently provided for a consultative
process unless that
process meets the procedural rationality test.
We have but only one standard for consultation in our jurisprudence.

And that is the standard that insists on a genuine and meaningful
consultative process that passes constitutional muster, regardless
of
which legislation or legal framework regulates that process.
[67]
For this reason, since the process provided for by section
3(5) has not been declared constitutionally invalid, when its demands

have been met, as in this case, then no room exists for exploring the
Motau
,
Albutt
and
Democratic Alliance
procedural
rationality avenue, for they are an integral part of the statutory
process.  That avenue may only be appropriately
pursued where no
statutory or other provision has been expressly made for
consultation.
[68]
e.tv made inputs to the policy initiated by Minister
Matsepe-Casaburri and Minister Carrim’s proposals for its
amendment.
All those views are presumably archived within the
Ministry somewhere.  They fall within the institutional memory
of the Ministry.
It was thus wholly unnecessary for the
Minister to seek “e.tv’s input on whether it would cover
the additional costs
associated with including encryption
capabilities in the subsidised set top boxes”.  The policy
was never about e.tv’s
special commercial interests or the
niche it seeks to carve out for itself but always about obtaining
whatever views interested
persons might wish to express on all key
aspects of the policy.  And that was done in respect of the
inclusion or exclusion
of decryption capabilities by all broadcasters
including e.tv itself.  Additionally, the costs issue was thrown
wide-open
when Minister Carrim published his policy proposals for
comment.  The proposals specifically raised the issue of costs
and
it was dealt with fully by the broadcasters.  This ought to
have triggered the need for e.tv to speak against the possibility
of
dumping decryption capabilities and to propose how the objective of
saving costs could still be achieved without abandoning
unscrambling
capabilities.  e.tv spurned that opportunity.  No
acceptable legal basis exists for the special treatment
contended for
by e.tv.  This procedural irrationality point must also fail.
[69]
Linked to both the procedural and substantive irrationality
points is some reliance on section 192 of the Constitution.  The

section provides:
“National legislation must establish an independent authority
to regulate broadcasting in the public interest, and to ensure

fairness and a diversity of views broadly representing South African
society.”
[70]
Section 192 of the Constitution has got very little, if
anything, to do with the Minister’s exercise of her
policy-making
powers.  It explains the existence of ICASA, the
constitutional obligations it bears and the guarantee of its
independence.
Properly understood, this provision informs us
that ICASA is an independent authority whose mandate is to regulate
broadcasting
for the good of the public.  When unfair reporting
or a biased or inexcusable exclusion of some views happens, it is to
ICASA
that any aggrieved party may turn to lodge a complaint for
possible intervention.  ICASA is also constitutionally enjoined

to level the broadcasting playing-field so that a diversity of views
that broadly reflects the thinking of South African people,
as
opposed to one sided propaganda-like narratives, may find
expression.
[71]
To seek to source the bases for the alleged procedural or
substantive irrationality of the Minister’s
policy-determination
from this section would, to say the least, be an
unfortunate misapplication of the provision.  This position
extends to the
legislation in terms of which ICASA exercises its
powers.
[26]
Substantive
irrationality
[72]
To demonstrate that the Minister’s policy is
substantively irrational, e.tv relies on two grounds:
(a) The Minister is fatally confused as to the effect of the
decryption amendment; and
(b) There is no rational connection between the purpose that the
Minister seeks to achieve and the means chosen to give effect
to that
purpose.
[73]
The impugned provisions of the Muthambi policy state that:
“5.1.2(A) In keeping with the objectives of ensuring universal
access to broadcasting services in South Africa and protecting

government investment in subsidised [set top box] market, [set top
box] control system in the free-to-air [digital terrestrial

television] will be non mandatory.
5.1.2(B) The [set top box] control system for the free-to-air
[digital terrestrial television] [set top boxes] shall—
(a)
not have capabilities to encrypt broadcast signals for the subsidised
[set top boxes]; and
(b)
be used to protect government investment in subsidised [set top box]
market thus supporting the local electronic manufacturing
sector.
5.1.2(C) Depending on the kind of broadcasting services broadcasters
may want to provide to their customers, individual broadcasters
may
at their own cost make decisions regarding encryption of content.”
[74]
The ordinary meaning of these provisions is that:
(a) Government-supplied set top boxes will all have a control system.
(b) Those set top boxes will not have decryption capabilities.
(c) Free-to-air broadcasters will be at liberty to encrypt their
signals but at their own expense.
(d) Commercial set top boxes would not be required to contain a
control system.
Did the Minister
misunderstand her policy?
[75]
e.tv submits that the Minister misunderstood the effect of her
encryption amendment.  This it says is manifest from her
conflicting
statements at times suggesting that decryption
capabilities are not to be built into government-supplied set top
boxes and at times
that it would be permissible.  And that the
latter would be achieved by e.tv investing in technologies and
software compatible
with government supplied set top boxes.
[76]
The impugned clauses of the policy are self-standing and must
be interpreted within the context of the generic policy decision.

What e.tv is doing, in relation to the so-called confusion or
misunderstanding point, is to interpret not the policy as such, but

averments made by the Director General and the Minister in their
affidavits with little regard for the language of the impugned

provisions themselves.  The duty of this Court is to test the
alleged irrationality of the policy primarily on the basis of
the
text itself but not on the clarificatory statements of the Minister
or Director General.
[27]
[77]
The attempt to ground a challenge to the substantive
rationality of the impugned provisions of the policy, largely on
statements
deposed to, is not legally sustainable and must therefore
fail.  In any event, the statements still do not sustain e.tv’s

contention that the Minister is confused.  Anchored on the
policy, they broadly present a coherent and legally sustainable

policy position.
Absence of
rational connection
[78]
The contention that the policy is not rationally connected to
the purpose for which it was made,
[28]
is based not only on the contents of the policy itself but primarily
on the Minister’s affidavit.  Whether an affidavit
may
permissibly be relied on as the major interpretative tool still
strikes one as an inappropriate approach.  Be that as
it may,
the argument is that based on the Minister’s affidavit, the
purpose she seeks to achieve through the policy decision
was not to
prevent decryption.  It was to save costs while at the same time
enabling broadcasters to decide freely whether
to encrypt and decrypt
their digital signals at their own expense.  The disconnect
between the means and the purpose is said
to be that whereas
government would indeed save money as intended, the exclusion of
decryption capabilities from the government-subsidised
set top
boxes would not allow e.tv to decide to encrypt.  This is said
to be so, because it would not be a commercially
viable proposition
to encrypt signals unless the broadcasting digital migration policy
requires set top boxes to have inbuilt decryption
capabilities.
[79]
The additional reason advanced is that unless its encrypted
signals is able to reach those five million deserving households,
e.tv’s
decision to encrypt would not only be financially
suicidal but would also place it in breach of its licence
conditions.  Knowing
its licence conditions e.tv previously
argued quite strenuously for the exclusion of decryption
capabilities.  Now, it says
that, to do so would constitute a
breach of its licence conditions.
[80]
Government wanted to save money while embarking on this
already expensive but laudable exercise for the good of five million
economically
disadvantaged households.  And this it would
achieve through a policy that dumps decryption capabilities.
This approach
accords with the policy “direction”
strongly advocated for by e.tv in its previous written views in
response to Minister
Matsepe-Casaburri’s draft policy that is
contrary to the views it subsequently expressed in support of
Minister Carrim’s
proposals.  The policy’s
purpose is not and would never have been to ruin or promote e.tv’s
commercial interests.
It is not centred around individual
players in the broadcasting industry.  It is preoccupied with
the interests of the financially
under resourced households.
The purpose of the policy for this specific aspect of the overall
government objective
[29]
was to relieve government of the exorbitant costs that would be
necessitated by the inclusion of decryption capabilities.
And
it would succeed to do so, if the policy were implemented.
[81]
Equally important is the freedom or opportunity it affords
free to air broadcasters, who consider it to be a
commercially
viable proposition, to encrypt their signals provided
they bear the costs for the decryption technologies.  Nobody
says that
broadcasting digital migration is not feasible without the
encryption of signals.  On the contrary e.tv previously made a
strong case to the effect that signal encryption is not necessary for
purposes of migration.  Now only e.tv, of all free-to-air

broadcasters, wants to encrypt if only, to paraphrase e.tv’s
words, government can effectively subsidise its preferred business

decision or strategy.  This subsidy takes the form of government
procuring set top boxes into which decrypting gadgets are

incorporated.  e.tv would then pay only for the
signal unscrambling device.  This would spare it the costs
of paying
for its own set top box equivalent.
[82]
Encryption is neither compulsory nor forbidden.  It all
depends on the depth of one’s pocket and the commercial
viability
and soundness of signal encryption as an option.  The
cost implications of encrypting and decrypting one’s
broadcasting
signals, ought to inform that decision.  Needless
to say, if the cost is too high to make business sense, it would then
be
foolhardy for any free-to-air broadcaster to encrypt signals.
Government has taken a policy-decision that accords with the
position
of all other broadcasters.  That policy dumps decryption
capabilities and is cost effective.  It effectively
amounts to a
ringing rejection of e.tv’s preferred policy “direction”.
And e.tv effectively says that the
policy is irrational.
[83]
In conclusion, the Ministry solicited views on the
Broadcasting Digital Migration Policy.  Finally, it made a
policy-decision
that would lead to set top boxes being given by
government to five million under-privileged households.  The
need to save
the taxpayers’ money was identified.  To
achieve that goal, the Ministry chose not to factor decryption
capabilities
into set top boxes.  e.tv in effect accepts that
dumping decryption capabilities is a legitimate and effective
cost-saving
measure or strategy.  It however contends that there
is another and possibly more appropriate means of achieving the same
purpose.  And that it would have presented that other choice to
the Ministry had it been consulted by Minister Muthambi
before
she finalised the policy.  e.tv is asking this Court to endorse
its apparently more inclusive and better means so that
the Ministry
may consider it for adoption.
[84]
But that is exactly what
Albutt
cautions against.
The enquiry is whether there is a rational connection between the
means and the purpose.  Since the
answer is yes, and e.tv
together with nine other television licencees were consulted,
judicial intrusion is constitutionally impermissible.
It is not
for interested persons or courts to determine the means but for the
Executive.  And it is for the Executive to chop
and change the
means as many times as they wish to achieve the same objective,
provided they do so within the bounds of the Constitution
and the
law.  They may even change it in a way that accommodates e.tv’s
proposals at any time before or after the delivery
of this judgment.
That is their judgement call, not the courts’.
[85]
What courts must always caution themselves against is the
temptation to impose their preferences or what they consider to be
the
best means available, on the other arms of the State.
Separation of powers forbids that.  Again we say, that
rationality
is not a master key that opens all doors, anytime, anyhow
and judicial encroachment is permissible only where it is necessary
and
unavoidable to do so.
[30]
This is not such a case.
[86]
Therefore the substantive rationality challenge fails on both
grounds.
Costs
[87]
e.tv, SOS and MMA should, but for
Biowatch
,
[31]
pay costs to all applicants on the basis that costs ordinarily follow
the result.  They however lose, not because their challenge
to
the policy is necessarily frivolous or vexatious but, because they
seek to vindicate the rule of law and the principle of legality.

Theirs was a case with some prospects of success, however thin.
And
Biowatch
[32]
requires that each party to such constitutional litigation is in
these circumstances to pay its own costs.  They are however
to
pay costs to the M-Net in all courts.
Order
[88]
In the result the following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Supreme Court of Appeal is set aside and replaced
with:
“1.
The appeal is dismissed; and
2.
e.tv (Pty) Limited, SOS Support Public Broadcasting Coalition and
Media Monitoring Africa are to pay the Electronic Media Network

Limited’s costs, including costs of two counsel.”
4. e.tv (Pty) Limited, SOS Support Public Broadcasting Coalition and
Media Monitoring Africa are to pay costs of the Electronic
Media
Network Limited in this Court, including costs of two counsel.
CAMERON J AND
FRONEMAN J (Khampepe J and Pretorius AJ concurring):
[89]
At issue is whether an amendment to the Broadcasting Digital
Migration Policy the Minister of Communications (Minister) published

on 18 March 2015 (Amendment) was validly issued in terms of section 3
of the Electronic Communications Act
[33]
(ECA).  The vital part of the Amendment was that, in contrast to
the original policy, it omitted decryption capability from
plans to
distribute five million subsidised set top boxes to the country’s
poorest five million households.  The set
top boxes will enable
those households to receive the impending, new, digital television
signal without having to junk their current
television sets, which
can receive only the old, analogue signal.
[90]
We don’t need to understand the rights and wrongs of
encryption.  All we need know, for now, is that e.tv wants it,
for
self-interested commercial reasons – and that, for
comparable reasons, the Electronic Media Network (M-Net) and the
South
African Broadcasting Corporation SOC Limited (SABC) oppose it.
This is because, they contended, it would increase the cost
of the
service, which would amount to subsidising commercial broadcasters.
e.tv is supported by two non-governmental organisations,
SOS Support
Public Broadcasting Coalition and Media Monitoring Africa, whose
disinterested public-interest commitment to supporting
encryption has
never been questioned.  M Net, the Minister and the SABC
opposed e.tv’s review of the Minister’s
omission of
decryption from the new policy.  The Supreme Court of Appeal
upheld e.tv’s challenge.  That decision
is now before us.
[91]
We have had the benefit of reading the judgment of Mogoeng CJ,
for whose exposition of the facts and issues we are grateful (first

judgment).  We do not agree that the appeal should succeed and
the order of the Supreme Court of Appeal be reversed.

Specifically, we do not agree that the amendment is immunised from
scrutiny by the doctrine of separation of powers or any doctrine
of
Executive decision-making.  It was a decision purportedly taken
under a statute that empowered it.  And it had to
comply with
the requirements of that statute and of the Constitution.  In
our view, though for reasons that differ from those
the Supreme Court
of Appeal gave, the Amendment was unlawfully issued, in breach of the
Minister’s constitutional and statutory
obligations.  For
the reasons set out here, that Court was right to set it aside.
[92]
Our reasons draw on the constitutional and statutory framework
whose powers the Minister purported to invoke.  They also draw

on, first, the role of rationality in policy-making by the Executive
as an indispensable part of a constitutional democracy based
on
participatory democracy and, second, on a simple application of
rationality in process that provides grounds for vitiating the

Minister’s decision here.
The
constitutional and statutory framework that bound the Minister
[93]
Where do we start?  With the Constitution, of course.
We do not consider it helpful to characterise the issue this case

presents as one trenching on the separation of powers.  No one
disputes that the Minister has the constitutional and statutory

authority to make policy under section 3(1) of the ECA.  The
courts do not have constitutional or statutory policy-making

authority and no-one has suggested otherwise.
[94]
What the courts do have under the Constitution is the judicial
authority and duty to determine the constitutional and legal
constraints
that govern the making of policy by the Executive.
Part of those constraints lie in the principle of legality, an aspect
of the rule of law.  That, too, no one disputes.  A logical
and necessary component of the rule of law and the principle
of
legality is that the exercise of public power may not be irrational.
Another aspect by now trite, that no one disputes.
[95]
So, when courts apply the test of rationality, both in process
and substance, they are not intruding on the Executive’s
authority
to make policy.  The test of rationality does not ask
whether the policy is substantively good or bad – only whether

the reasons given for the making of the policy, and the means used to
arrive at the policy, are rationally connected to the end
sought.
[96]
But it is necessary to spell out more clearly, for this case,
that the rationality we talk about must be determined in the context

of our own brand of constitutional democracy.  And that brand is
one of participatory democracy, designed to ensure accountability,

responsiveness and openness.
[34]
In
Doctors for Life
decision this Court stated:
“[Public participation] strengthens the legitimacy of
legislation in the eyes of the people.  Finally, because of its

open and public character, it acts as a counterweight to secret
lobbying and influence-peddling.”
[35]
[97]
So, when one determines whether consultation as a prerequisite
to the determination of policy by the Executive has been complied

with, one must ascertain whether the consultation has been done in a
manner that rationally connects the consultation with the

constitutional purpose of accountability, responsiveness and
openness.  No superimposed judicial stratagem of undermining

separation of powers is at work here.  To the contrary,
rationality in process and substance is umbilically linked to the

pulse-beat of our constitutional democracy, one based on
accountability, responsiveness and openness.
[98]
Hence, if accountability, responsiveness and openness are
fundamental to our Constitution, then a consultation process that
lacks
those attributes needs to be explained.  Where there is no
explanation there is no reason, and where there is no reason there
is
arbitrariness and irrationality.  Neither rocket science nor
judicial conspiracy are needed to understand the simplicity,
logic
and, yes, moral suasion of it.  We see below how applying these
precepts in practice should upend what happened here.
[99]
For at the heart of this case is how government may exercise
its power to regulate broadcasting.  The Constitution shows us

how.  It does so very beautifully.  It posits specific
values for regulating broadcasting.  And it invests
so much
importance in those values that it houses them in Chapter Nine, which
sets up independent state institutions
[36]
supporting democracy.
[37]
After creating the Public Protector, the South African Human
Rights Commission, the Commission for the Promotion and
Protection of
the Rights of Cultural, Religious and Linguistic Communities, the
Commission for Gender Equality, the Auditor-General
and the Electoral
Commission, the Chapter sets up an independent authority to regulate
broadcasting.  Section 192 provides:
“National legislation must establish an independent authority
to regulate broadcasting in the public interest, and to ensure

fairness and a diversity of views broadly representing South African
society.”
[38]
[100]
What work does this provision do for our constitutional
democracy?  Is it a once off instruction, simply telling
Parliament
to pass a piece of legislation?  And once Parliament
has passed the statute, is the provision expended, its work done?

Does it then become a relic of constitutional history with “very
little, if anything, to do with the Minister’s exercise
of her
policy-making powers”?
[39]
No.  Definitely not.  The provision does far more.  It
remains alive, an operative part of a living Constitution.
It
perches atop a potent premise – that there is a general
constitutional duty to regulate broadcasting in the public interest,

and to ensure fairness and a diversity of views broadly representing
South African society.
[101]
The Constitution uses a practical mechanism to give effect to
these values.  Section 192 requires that national legislation
be
passed to establish an independent authority to regulate
broadcasting.  The purpose of the legislation is not merely to

endow the authority with a mandate to regulate broadcasting in the
way the Constitution requires.  It is to give institutional

embodiment to a vivid constitutional notion – a commitment to
regulating broadcasting in the public interest, and to ensure

fairness and a diversity of views broadly representing South African
society.
[102]
And this is exactly how Parliament understood its
constitutional mandate when it enacted the Independent Communication
Authority
of South Africa Act
[40]
(ICASA Act) and the ECA.  It locked the two statutes
together.  The ECA doesn’t stand alone on a statutory

island, isolated from the ICASA Act and from section 192.  The
two statutes lie entwined in a friendly, mutually inter-locking

constitutional embrace, their provisions and purposes closely
interlinked.
[103]
They must be.  Both owe their origin to section 192.
And both seek, rightly, to fulfil its values.  Thus, one of
the
express objects of the ECA is (subject to its provisions) to
“promote, facilitate and harmonise the achievement of the

objects of” the ICASA Act.
[41]
The object of the ICASA Act, in turn, is “to establish an
independent authority”, which it charges with a fourfold

task.
[42]
This is “to regulate broadcasting in the public interest and to
ensure fairness and a diversity of views broadly representing
South
African society, as required by section 192 of the
Constitution.”
[43]
It is also to “regulate electronic communications in the public
interest”
[44]
as well as to regulate postal matters in the public interest.
[45]
And, the ICASA Act provides that ICASA’s objects themselves
include to “achieve the objects” of the ECA.
[46]
[104]
On top of this, the ECA expressly provides that the policies
the Minister makes under it must be “consistent with the
objects
of” the ECA and the ICASA Act.
[47]
The Minister, of course, makes policies consistent with the
ICASA Act only if her policies are true to the objects of that

statute, which are drenched in the values section 192 spells out.
[105]
And both statutes require, as a founding aspect of the
constitutional order of which they form part, not only that
decision-making
under them must be rational, but that the processes
by which decisions are reached are themselves rational.
Rationality and
process-rationality are not super-statutory add-ons.
They are a fundamental prescription of the ECA itself, and not a
loose-standing,
super-imposed constitutional requirement.  They
are indeed an integral part of every decision-making process that any
statute
licenses.
[106]
Let us pause for a moment to feel the force of this.  The
Minister is responsible for implementing the ECA.  That
statute’s
primary object is to provide for the regulation of
electronic communications in the Republic “in the public
interest”.
[48]
The first-stated object of the ICASA Act is, in turn, to regulate
broadcasting in the public interest and to ensure fairness
and a
diversity of views broadly representing South African society,
as
required by section 192 of the Constitution
.
[107]
So, when the Minister makes policy under the ECA, she, too,
does not stand alone on a statutory island.  Not remotely.

Her policy-making powers under the ECA are closely hemmed in by,
enmeshed with and defined by not only the objects of the ICASA
Act
but by the constitutional values that underlie both statutes –
including the fundamental constitutional requirement that
all
decision-making be rational.  Indeed, how could the ECA possibly
provide that ICASA – a constitutionally established
body –
“must consider policies made by the Minister” under the
ECA,
[49]
unless the Minister, in formulating those policies, is bound to
synchronise them constitutionally with ICASA’s values and

objects?  How could the Minister make policy that must “be
taken seriously by agencies and all other functionaries who
needed
guidance or direction on broadcasting digital migration”
[50]
if she could willy-nilly step outside the confines of the values and
objects of those agencies that Parliament has prescribed?
[108]
In hard-nosed practical terms, this interlocking statutory and
constitutional web shows that the Minister wasn’t ranging
freely
in a lofty Executive space where she was at large to formulate
the policies she preferred.  The statutes and the Constitution

guided the Minister firmly when she purported to issue her
Amendment.  She was not free to disregard the constitutional
imperative
of regulating broadcasting in the public interest, and to
ensure a diversity of views.  Her Amendment not only had to be
consistent
with section 192.  It also had to promote and
facilitate convergence of telecommunications,
[51]
promote competition within the information, communications and
technology (ICT) sector,
[52]
promote an environment of open, fair and non discriminatory
access to broadcasting service
[53]
and promote the interests of consumers with regard to the price,
quality and the variety of electronic communications services.
[54]
[109]
Most importantly, the Minister in making policy under section
3(1) had to promote the development of public, commercial and
community
broadcasting services which are responsive to the needs of
the public.
[55]
And she had to “provide access to broadcasting signal
distribution for broadcasting and encourage the development of

multi-channel distribution systems in the broadcasting
framework”.
[56]
[110]
Can one discount all this on the basis that
the
Amendment constitutes the exercise of Executive authority under the
Constitution or that scrutinising its patent missteps is
an
impermissible encroachment on the powers of the Executive, as the
first judgment finds?  Was the Minister making national
policy
as contemplated by the Constitution?
[57]
No.  Not remotely.  Section 85(2)(b) of the Constitution
gives the President and the other members of the Cabinet
power to
exercise Executive authority “by developing and implementing
national policy”.
[58]
This is a grand and elevated pointer in the constitutional scheme.
It is not a nuts and bolts provision that says precisely
how
a particular policy must be
developed in a specific statutory area.  That the two statutes
do.
[111]
In delimiting the Minister’s power
to make policy, the ECA and the ICASA Act conform with section
85(2)(b).  They
give the Minister’s constitutional
policy making power precision and content and boundaries and
direction.  They
do not detract from the Executive’s
power.  They regulate and define and delimit it, as is proper in
a constitutional
state subject to the rule of law.  And her
exercise of the power is subject to the courts’ scrutiny, as is
also proper
in a constitutional state subject to the rule of law.
[112]
Here we may contrast national policy-making in an everyday
domestic area like the ICT sector with foreign policy.  Foreign
policy, this Court has said, “is essentially the function of
the Executive”.
[59]
And no piece of legislation regulates the Executive’s power to
determine foreign policy.  By contrast, when a
statute gives
practical definition to a Minister’s constitutional power to
make national policy, as these two statutes do,
it means that
Parliament has exercised the legislative authority the Constitution
confers on it.
[60]
Unless the statute is constitutionally invalid, it is a mistake to
invoke the general constitutional power, and to treat
it as hallowed,
while ignoring its particular statutory embodiment.
[61]
[113]
The Minister’s power to make policy isn’t given
practical realisation upstairs, in the heady heights of section
85(2)(b).
That is done down here, in the gritty working
mechanisms of the ECA and the ICASA Act.  And
the
Legislature, exercising its constitutional authority, hemmed in the
Minister’s policy-making power.  It provided
that, in
exercising that power under section 3(1) of the ECA, she must make
policy that is “consistent with the objects of
[the ECA] and of
the [ICASA Act]”.  The Minister has not challenged these
provisions.  Rightly so.  She is
bound by them.
[114]
Two details from section 3 of the ECA
illuminate this.  Making policies under section 3(1) is reserved
exclusively for the
Minister: the statute does not require her to
consult Cabinet.  This contrasts with the Minister’s power
under section
3(1A) to issue certain policy directions – that
she may do only “after having obtained Cabinet approval”.
[62]
Both provisions shelter comfortably under section 85(2)(b) –
the one requiring Cabinet approval, the other eschewing
it.
[115]
The pure section 85(2)(b) national
policy-making power is distinctive from both.  For that is
entrusted to the President “
together
with
the other members of the
Cabinet”.  Section 85(2)(b) contemplates primarily joint
(“together”) Executive
policy making in the national
sphere.  It is through statutes that the national Executive’s
general policy making
power is particularised, informed and delimited
– and conferred on Ministers.  Exactly as the ECA and the
ICASA Act
do here.
[116]
The detailed provisions of section 3(1)
bear this out.  The section 3(1) policy making power is
designed to give effect
to the provisions of the ECA and the
ICASA Act (and the other “related legislation”) –
more especially the
objects of these statutes (which in turn aim to
give effect to section 192 of the Constitution).  It is a
statutorily precise
power that derives, but is not immunised, from
scrutiny by section 85(2)(b) of the Constitution.
[117]
It is true that section 3(1) empowers
the Minister to “make policies on matters of national policy
applicable to the ICT sector”.
But the verbal echo of the
Constitution’s phrase “national policy” doesn’t
mean that in doing so the Minister
bestrides the lofty spaces of
section 85(2)(b), unencumbered by the statute, and that she can
therefore claim immunity from scrutiny.
[63]
She must stay downstairs, implementing the statute, in accord with
the injunctions of section 192 and the prescripts of the
ECA and the
ICASA Act.
[118]
So we must conclude that the Minister in
exercising her power under section 3(1) of the ECA to “make
policies on matters
of national policy applicable to the ICT sector”
was exercising a statutory power, informed by constitutional values
and
deriving from high constitutional authority, but not protected
from scrutiny by any lofty constitutional policy-making
immunity.
[64]
This makes it hard to see how insisting that the Minister act in
accordance with statutory prescripts binding on her –
the
constitutionality of which has not been challenged – can be
impermissible judicial intrusion on Executive powers.
To the
contrary, this is a classic example of where “courts are not
only entitled but are obliged to intervene”.
[65]
The Minister’s disregard of her constitutional and statutory
obligations was patent.
Irrationality in
substance and in process
[119]
What legal controls govern the Minister’s exercise of
her section 3(1) policy making power?  We know she is bound

by the statute and the prescripts of section 192.  If she
ignores any of the procedural requirements of section 3, her policy

will be void for non-compliance with the statute.  But if she
commits no procedural misstep, does the Promotion of Administrative

Justice Act
[66]
(PAJA) apply to check her policy-making?  The Supreme Court of
Appeal, finding a procedural misstep, considered it unnecessary
to
decide this; and before us none of the parties claimed that PAJA
applied.  That may well be correct, for, in general, making

policy does not constitute administrative action.
[67]
But we find it unnecessary to decide this.  For even assuming
PAJA doesn’t apply, that does not mean section 3
leaves the
Minister free to make policy without legal or constitutional
constraint.
[120]
In the courts below, the Minister accepted this.  She
conceded that her Amendment was subject to review under the principle

of legality.  When the matter came before this Court, she
abandoned that stance.  Now, for the first time, the Minister

submitted, far-goingly, that her decision is “not subject to
judicial review”.  This she said was because the
policy
does not in itself have any effect “and may never do so”.
It would have legal effect only if the Universal
Service and Access
Agency of South Africa (USAASA) decides to implement it.
[121]
The ECA establishes USAASA as a state-owned entity of
government.
[68]
The Minister herself appoints its board.
[69]
The ECA provides that it “must consider policies made by the
Minister” under section 3(1).
[70]
And it “must” exercise its powers “in
accordance with any policy direction issued by the Minister”
[71]
under section 3(2).  The Fund USAASA controls, the Universal
Service and Access Fund – the very Fund that government
will
use to fund the manufacture and distribution of the set top boxes at
issue here – “must be administered by [USAASA]
subject to
the control and in accordance with the instructions of the
Minister”.
[72]
This is the body the Minister contends stands at first base to give
her Amendment its first flush of legal effect –
not a moment
before.  “Must be administered.”  “Subject
to the control and in accordance with the”
Minister’s
instructions.
[122]
These provisions make it idle to try to paint the Minister as
issuing legally inconsequential advice to USAASA which it is free to

adopt or ignore.  USAASA is plainly bound by the Minister’s
instructions.  This means the Minister’s contentions
about
the legal impact of her Amendment are wrong.  There can be no
doubt that her decision to issue the Amendment hit the
real world
with a perceptible thud.  It had a legally cognisable effect –
even if only in obliging ICASA and USAASA
to take account of it.
[73]
And then there’s the Minister’s direct, hands-on control
over USAASA’s Fund.  Only in a world of legal
fancy could
it be imagined that her Amendment had no inherent effect.  And,
what’s more, review under the principle
of legality does not
require, as PAJA does, that the decision has direct, external, legal
effect for it to be reviewable.
[123]
It follows that the Minister in issuing the Amendment was
subject to legality scrutiny.  In issuing policies she must act
rationally.
The principle of legality, which underlies our
constitutional order, requires it.  All exercises of public
power must be “capable
of being analysed and justified
rationally”.
[74]
Khampepe J recently emphasised that “review for rationality is
about testing whether there is a sufficient connection
between the
means chosen and the objective sought to be achieved”.
[75]
She summarised the position on behalf of the Court thus:
“The principle of legality requires that every exercise of
public power, including every executive act, be rational.
For
an exercise of public power to meet this standard, it must be
rationally related to the purpose for which the power was given.

It is also well established that the test for rationality is
objective and is distinct from that of reasonableness.”
[76]
[124]
But, more even, how the Minister works out her policy must be
also rational.  This is a principle of lawfulness itself that

underlies her every exercise of her powers under the ECA.  She
cannot attain rationality in outcome if the means she employs
to get
there is irrational.  This means that the process she follows in
formulating policy must be rationally connected to
the purpose for
which the power to issue policy is conferred.  The question this
Court stated in
Democratic Alliance
is “whether the
steps in the process were rationally related to the end sought to be
achieved and, if not, whether the absence
of a connection between a
particular step (part of the means) is so unrelated to the end as to
taint the whole process with irrationality”.
[77]
[125]
The Court went on to explain that, if in a particular 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”.
[78]
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 therefore 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.”
[79]
[126]
That is what happened here.  The Minister adopted an
irrational means of formulating the Amendment.  The steps she
took
were not rationally related to her end in formulating the
Amendment.  And two unexplained aspects of her conduct
underscore
the conclusion that she acted irrationally.  We now
see why.
What happened here?
[127]
The first judgment notes that the Minister’s purpose in
promulgating the Amendment was not to prevent decryption – it

“was to save costs”:
[80]
“Government wanted to save money while embarking on this
already expensive but laudable exercise”
[81]
of bringing set top boxes to those who could least afford it.
“And this it would achieve through a policy that dumps

decryption capabilities”.
[82]
[128]
This analysis is correct.  The evidence shows that cost
was pivotal to the decision to dump decryption by promulgating the
Amendment.  But how that happened shows a critical failure of
rational policy-making.  The Minister sought to save costs
by
dumping decryption – but costs were already to be saved via the
proposal of the then Minister, Minister Carrim –
and no further
costs were to be saved by the Amendment.  This was because e.tv
was willing to fund the cost differential of
including decryption.
It supported Minister Carrim’s proposed amendments requiring
that it and other broadcasters eventually
foot the bill, while
government funds the costs upfront.
[129]
But why should government even pay those costs upfront?
Good question.  That would entail an outlay of public funding

for the benefit of commercial broadcasters who would use the
decryption capability.  The question should have been put to

e.tv.  e.tv was willing to pay the upfront costs – thereby
insulating government from any additional outlay of public
funds, at
any stage.  But the Minister was uncertain of the extent to
which e.tv would cover the costs.  Instead of asking
e.tv, the
Minister decided to dump decryption – to save costs.  That
was irrational process of the highest order.
[130]
The first judgment holds that—
“e.tv could, knowing the strong views held by all other
broadcasters and in response to the Carrim policy draft, have
proposed
that costs, to be paid by free-to-air broadcasters who would
prefer to encrypt and therefore use the inbuilt decryption
capabilities,
be paid in advance.”
[83]
That is true.
Why did e.tv not do so?  The reason is telling.  It didn’t
have to
because it was invited to make submissions on the funding
model proposed by Minister Carrim
– not to propose its own
model.  And that is precisely the point.  The Minister did
not have the information that
was critical to make her decision
rational – that is whether e.tv was prepared to cover the costs
in advance.  This
after e.tv had already made it clear that the
costs could be recovered from it.  For it was only if e.tv was
not prepared
to cover the costs in advance that the Minister could
rationally conclude that dumping decryption would in fact save
government
costs (in the form of immediately required funding).
Instead, irrationally, she decided to save costs by dumping
decryption
without knowledge or consultation: decryption that
Minister Carrim had unimpeachably concluded was necessary to advance
the objects
of the ICASA Act.
[131]
The details show why the Minister’s decision was
irrational.
[132]
The question of encryption versus non-encryption, and the
excess cost of adding decryption, was a central issue from 2013.

In that year, Minister Carrim stated that government was adverse to
“subscription broadcasters unfairly benefiting from the

[set top box] Control System” by government paying the
additional costs of adding decryption capability to set top boxes.

Minister Carrim proposed to amend the policy so that “[g]overnment’s
investment in the [set top box] Control System
will be recovered from
those subscription broadcasters that choose to make use of the
[set top box] Control system”.
[84]
In other words, government would foot the decryption costs upfront,
but would afterwards bill the broadcasters who would
benefit.
[133]
Why was the government prepared at all to advance the
decryption costs upfront though later reclaiming them?  One
factor Minister
Carrim spelled out was the need to “[r]educe
the extent of monopolisation and encourage competition by creating
space for
new players in the pay television market without them
unfairly benefiting from the Government subsidy”.
[85]
In other words, to do so would encourage competition – but not
at government expense.  Encouraging competition,
as shown
earlier, plainly accorded with both the letter and spirit of section
192 of the Constitution and the ECA.
[86]
[134]
e.tv in response commended government’s decision.
In its submission of 5 January 2014 to Minister Carrim’s

proposed amendments, it explained that indeed the decryption costs
would be borne by the manufacturer and the broadcasters.
Just
what e.tv said becomes important later, since the Minister said it
was unclear.  Here’s what e.tv said:
“The cost of encryption is not a barrier to implementation of
the ‘smart’ free-to-air [digital terrestrial television]

platform.  Since a low-cost encryption system would be used, it
does not add significant additional cost to the [set top boxes].

The additional cost to the [set top boxes] would be a once-off
encryption royalty of under $2 per [set top box], which is

payable by the manufacturer.  (This royalty is substantially
less than the costs of making the [set top box] MPEG 4 and HO).

All other costs are carried by the free-to-air broadcasters who
choose to use the encryption system – the initial capital

set-up costs (including capex), the [set top box] activation costs,
and the operational and maintenance costs are minimal and constitute

a negligible investment for the broadcasters choosing to encrypt
their signals.”
[135]
This submission proceeds on the premise that government will
fund the upfront cost differential of adding decryption (because
government
would have to pay the manufacturer, who would have to pay
the “once-off encryption royalty”).  e.tv also
confirmed
that it would definitely use the decryption capabilities –
meaning it was prepared to stump up the costs.
[87]
[136]
These events following Minister Carrim’s proposal
evidence a clear understanding that government would include
decryption
capabilities in the subsidised set top boxes and that e.tv
– whether alone or not – planned to use decryption and
pay
government back for its upfront outlay.
[137]
Then Minister Muthambi took over.  In May 2014, she
succeeded Minister Carrim.  On 6 November 2014, she
indicated
that she needed to undertake extensive consultations on
decryption with various stakeholders.  These were not named, but
included
other government departments.  This was because, she
said, “the issue of Control Access or No Control Access
will
have a wide-ranging impact on the future of broadcasting,
communications and on the majority of citizens in this country”.
[138]
The Minister did not explain why she considered the
submissions already received through the formal, statutorily mandated
process
inadequate.  Nor did she indicate that she considered
further consultation necessary because of any major change to the
existing
policy or the draft amendments her predecessor promulgated.
[139]
On 4 March 2015, Cabinet approved the Broadcasting Digital
Migration Amendment Policy.
[88]
This included a control system in the set top boxes – but
Minister Muthambi’s department on 8 March 2015
for the
first time indicated that the “control system” excluded
“an encryption of the signal to control access
to content by
viewers”.
[89]
And the Amendment, which Minister Muthambi published on
18 March 2015, provided that encryption “will be

non-mandatory”.
[90]
For the first time, the policy specified through the Amendment that
the set top box control system shall “not have
capabilities to
encrypt broadcast signals for the subsidised [set top boxes]”.
[91]
Instead, individual broadcasters could “at their own cost”
decide on encryption of content.  The effect
of this was that
state-subsidised set top boxes would be specifically precluded from
being manufactured with decryption capabilities.
[92]
[140]
e.tv wrote to the Minister.  It asked her for reasons for
the Amendment – particularly for excluding decryption.

The Minister responded that this was a Cabinet decision and e.tv was
not entitled to reasons.
[141]
But the reasons finally emerged.  They did, in this
litigation.  Minister Muthambi filed an affidavit in the
High
Court.  It was deposed to on her behalf by the Acting
Director-General of her Department, Mr Norman Ndivhuho Munzhelele.

The deposition explained why the Minister dumped decryption.
[142]
In its founding affidavit, e.tv alleged that the Minister’s
sole justification for the Amendment was that she sought to “clarify”

that “government will not pay for encryption”.
Minister Muthambi did not deny this.  She explained that
the
Amendment entailed “no encryption at government’s
expense”.  This was, amongst other reasons, because
“the
software for encryption is significantly expensive and would result
in substantial additional costs for government”.

Decryption, the Minister warned, “also requires subscriber
management, which would place an additional cost on government
–
in terms of financial and human resources.”
[93]
“Significant costs and resources that are required to do so”,
the Minister’s affidavit concluded, “are
the main reason
for not providing encryption capabilities”.  Summing up
government’s position, the Minister’s
affidavit
explained:
“It is not the policy of government to incur costs to ensure
that the [free-to-air] broadcaster that chooses to encrypt must,

effectively, be subsidised by government from the public purse to
facilitate competition.”
[143]
The Minister went further.  She accused e.tv of wanting
“government to incur further public spending to facilitate
encryption
of broadcasts”.  This made it clear that
government was resiling from Minister Carrim’s position that it
was willing
to pay the added decryption costs upfront, though raking
them back later.  Government now, Minister Muthambi explained,
was
not prepared to stake any capital, at any stage, on decryption:
“[G]overnment has no responsibility to spend public money in
order to improve the position of [free-to-air] broadcasters
from
their current position to a better position post digital migration.”
And:
“As far as the government is concerned, the reason why the
government refuses to pay the costs of encryption is simply a

question of costs and the manner in which the government has
prioritised its spending of taxpayers’ money.”
[144]
In its replying affidavit, e.tv reiterated that it was
prepared to cover the additional costs – and was in fact in
negotiation
with a supplier who would install the decrypting
capabilities in the subsidised set top boxes, at e.tv’s cost:
“Indeed, e.tv’s present position is that . . . subject to
the successful conclusion of negotiations with Nagravision
. . . . It
is prepared . . . to pay for the additional encryption related
costs identified by the Minister in her answering
affidavit.”
[94]
[145]
By now the extent of the misunderstanding – if we are to
accept, in favour of the Minister, that what happened was a
misunderstanding
– had become plain.  The impact of the
Amendment was that e.tv would not be able to spend its own money on
including
decryption capabilities in the subsidised set top boxes.
This was even though the Minister appreciated that the SABC, a public

body, might in future also want to use these capabilities – in
which case, the Minister’s affidavit says, the SABC
“shall
take the necessary steps to finance that change of mind”.
[146]
But why did Minister Muthambi consider costs a wholly
preclusionary factor – when e.tv had placed on record, before
Minister
Carrim, that it was willing to repay government any upfront
costs it incurred?  From the Minister’s deposition, a
two-fold
answer emerges.  First, the Minister – reversing
Minister Carrim’s stance – was now unwilling to expend
any government capital, at all, at any stage, on decryption.
Second, the Minister wasn’t sure what e.tv meant when it
said
it would cover costs.  The Minister’s affidavit expressed
uncertainty about the extent to which e.tv, or the manufacturer
of
the set top boxes, would in fact cover the costs.  This emerges
from the Minister’s answering affidavit in response
to
paragraph 3.7 of e.tv’s 2014 submission.
[95]
Her affidavit complained that in so far as e.tv there said that some
of the costs are payable by the manufacturer—
“it has not told anyone the terms thereof and whether such
terms are terms which the government should accept insofar as
the
government subsidised [set top boxes] are concerned.”
[147]
This evinces a gross defect in the Minister’s process.
The Minister expresses mystification regarding “the terms”

on which costs are payable – and about whether government
should accept them.  This was a critical element of the
consultation
process that took place under Minister Carrim.  Yet
the Minister took no step to clarify her uncertainty.
[148]
If the Minister was concerned about cost to government, and if
cost was the reason why the Amendment dumped decryption, why not find

out from e.tv what exactly the position was?  What would the
manufacturer cover – and what would e.tv cover?  e.tv’s

replying affidavit rightly called the failure to engage with it on
this “specially startling”—
“given that e.tv was the only broadcaster whose stated plans
would be hindered by the amendments and that e.tv was the only

broadcaster, who could indicate to the Minister whether it was
prepared to pay for the additional costs in allowing encryption

capability on the subsidised [set top boxes].”
[149]
As this Court said in
Democratic Alliance
, the steps in
the process followed by the Minister have to be “rationally
related to the end sought to be achieved”.
[96]
And, if they are not, the question is whether the absence of a
connection between a particular step is “so unrelated
to the
end as to taint the whole process with irrationality”.
[97]
[150]
Here, the Minister sought to save costs.  But the
objective she sought to attain was illusory, since e.tv had already
tendered
to cover costs.  And, to the extent that its tender was
unclear, rational pursuit of her objective of cost-saving by dumping

decryption required her to clarify with e.tv what its tender
entailed.  The means she pursued to attain the end of
cost-saving
was so glaring – so irrationally unrelated to that
end – that the whole process she adopted in promulgating the
Amendment
was tainted by irrationality.  It must be set aside.
[151]
We also do not see what difference it makes that Minister
Muthambi picked up a process that her predecessor Minister Carrim
initiated.
The crucial point is that neither Minister invited
consultation, nor obtained any views or submissions, on the crucial
question
of whether e.tv was prepared, in the event that government
was not, to foot the costs upfront.
[152]
Two further aspects of how the Minister went about her work
underscore this conclusion.  The Minister does not explain two
strange aspects of her consultation process.  The first is
whether she consulted ICASA and USAASA, the “Authority”

and “Agency” respectively, whom she needed to consult in
terms of section 3(5) of the ECA.
[98]
The second is her failure to disclose who she consulted with
after the formal consultation process was allegedly completed.
[153]
Nowhere in her papers does the Minister state, as a fact with
documented proof, that notice was given to ICASA and USAASA.

The first judgment skirts this:
“Though cited as parties to this litigation, they [ICASA and
USAASA] have decided not to oppose the Minister’s application

to protect the policy from being set aside by reason of the alleged
non-consultation or invalidity.  It must thus be reasonably

assumed on their behalf that they find nothing wrong with the
policy-formulation process as it affects them, and even as regards

compliance with the provisions of section 3(5) of the ECA.”
[99]
[154]
Whether ICASA and USAASA are content with the Minister’s
policy formulation is not the issue.  The issue is whether they

have been consulted in terms of the ECA.  And they do not state
that they did receive notice.  Nor does the Minister.
No
explanation, no reason: unreason, arbitrariness, irrationality.
[155]
Next is what happened after the Minister’s alleged
compliance with the statute’s consultation requirements.
The
Minister admits that she went out and consulted other persons and
entities, but not e.tv.  She does not explain why she did
so and
she does not say who she consulted.  The first judgment is
rightly critical of this:
“But this does not mean that a blind eye is to be turned to her
concern-evoking evasive and ‘suspicious’ responses
or
lack thereof to pertinent questions raised by e.tv.  For, we
live in a constitutional democracy, whose foundational values
include
openness and accountability.  It is thus inappropriate for the
Minister to not have volunteered the identities of
those she
consulted with and what the consultation was about, as if she was not
entitled to solicit enlightenment or did so in
pursuit of an
illegitimate agenda.  This conduct must be frowned upon and
discouraged.”
[100]
We
agree wholeheartedly.
[156]
But then the first judgment
concludes:
“It does not however constitute the necessary and unavoidable
constitutional basis for judicial intrusion.”
[101]
With this we
emphatically disagree.
[157]
The Minister does not tell us why further consultation was
necessary, nor who she consulted with.  In this, she failed to
adhere
to fundamental constitutional values of accountability,
responsiveness and openness.  And for it she offers no
explanation.
She does not seek to explain why this is not an
instance that opens the door to “secret lobbying and
influence-peddling”.
No explanation, no reason: unreason,
arbitrariness, irrationality.
[158]
These two instances, on their own, sufficiently demonstrate
irrationality in the consultation process, contrary to the
fundamental
constitutional demands of accountability, responsiveness
and openness.  These factors have absolutely nothing to do with
any
assessment of the merits of e.tv’s claims, nor that of any
of the parties who made their views on the policy known.
There
is no intrusion on the merits of policy making by the Minister.
[159]
The same applies to a further consideration.  The change
in policy that the Minister envisaged was an amendment both of the

original policy of Minister Matsepe Casaburri and that
envisaged by Minister Carrim.  In terms of section 3(6) of
the
ECA the consultation provisions of section 3(5) “do not apply
in respect of any amendment by the Minister of a policy
direction
contemplated in subsection (2) as a result of representations
received and reviewed by him or her after consultation
or publication
in terms of subsection (5)”.  The Minister issued a policy
under section 3(1) and not a policy direction
under section
3(2).  Despite some fancy distinguishing footwork in argument it
seems clear that an amendment of a policy by
the Minister had to
comply, again, with the provisions of section 3(5).  This did
not happen.
[160]
For these reasons, too, the appeal has no merit.
[161]
Laying lawyers’ language aside, the Minister seems to
have missed an opportunity to facilitate provision of access to
encrypted
signals for the poor at no cost to government – while
at the same time fulfilling the objects of the ECA by encouraging the

development of multi-channel distribution systems.  e.tv’s
grievance that the Minister did not consult it is not a lawyers’

stratagem.  Its argument seeks to import common-sense into the
process of consultation.  And the requirement of process

rationality should ensure that common-sense prevails.
[162]
And, finally, what do we make of e.tv’s
about-face?
[102]
One might venture that the burdensome task of public-policy
formulation is not a television gameshow, in which contestants
are
trapped by and penalised for their own previous protestations.
The very point of rational governance, and of consultation
to enable
it, is to allow and even encourage shifts and nuances of position on
both sides.  On an issue as important as encrypting
set top
boxes for South Africa’s poorest television viewers,
consultation required nothing less.
Order
[163]
We would therefore grant leave to appeal, but dismiss the
appeal, with costs, including the costs of two counsel.
JAFTA J:
[164]
I have had the benefit of reading the judgments prepared by
the Chief Justice (first judgment), Cameron J and Froneman J (second

judgment).  The first judgment reaches a different outcome from
the second and third.  While I agree with the outcome
proposed
in the first judgment, I am unable to support some of the reasoning
furnished for it.  I disagree with the second
judgment and the
remedy it proposes.
[165]
The facts are comprehensively set out in the first judgment
and as a result it is not necessary to repeat them here.
[166]
As I see them, the issues raised in this appeal are whether
the Minister of Communications (Minister) had authority to effect the

impugned amendment to the policy and if she did, the further issue is
whether the amendment was rational.
[167]
The resolution of these issues requires us to interpret and
apply to the facts, the relevant legislative provisions.  These

are the provisions of section 3 read with section 2 of the
Electronic Communications Act (ECA).
[103]
Section 2 stipulates that the primary objects of this Act are to
provide for the regulation of electronic communications
in the public
interest.  To facilitate the realisation of this purpose, the
section lists a number of objects which may be
pursued.  These
include promoting the convergence of broadcasting and information
technologies; ensuring the provision of
broadcasting services by
diverse persons or communities; promoting an environment of open,
fair and non-discriminatory access to
broadcasting services and
encouraging investment, including strategic infrastructure investment
in the communications sector.
[168]
Section 3 empowers the Minister to make national policy
applicable to the information, communications and technology sector.

Apart from being consistent with the objects of the ECA, such policy
must relate to, among others, the application of new technologies

pertaining to broadcasting services.
[169]
In addition, section 3(1A) and (2) authorises the Minister to
issue a policy direction consistent with the objects of the ECA and

national policies, in relation to a number of issues listed in these
subsections.  Section 3(3) limits the Minister’s
power to
make policy or policy direction with regard to the granting, renewal,
transfer, suspension or cancellation of a licence,
to the extent
permitted by the ECA.  It is apparent from this provision that
the Minister is allowed to make policy or policy
direction in respect
of operational matters which fall within the domain of the
Independent Communications Authority of South Africa
(ICASA),
established in terms of the Independent Communications Authority of
South Africa Act (ICASA Act).
[104]
Some of those operational matters may fall under the jurisdiction of
the Universal Service and Access Agency of South Africa
(USAASA).
[170]
The authority to make policies which regulate ICASA’s
operational matters appears to be inconsistent with section 192 of
the
Constitution.
[105]
The Constitution requires Parliament to pass legislation establishing
an independent authority to regulate broadcasting in
the public
interest.  The ICASA Act is such legislation and ICASA is the
authority mentioned in section 192.  Ministerial
policies on
ICASA’s operational matters like the granting of broadcasting
licences would ordinarily be at odds with ICASA’s
independence.
[171]
It is apparent from section 3(4) that Parliament was aware of
this issue.  The provision makes it plain that both ICASA and

USAASA are not bound to follow policies or policy directions of the
Minister when exercising their powers or performing their duties.

Instead, these bodies are required to merely take such policies into
consideration.  In this way their independence is protected.
[172]
Section 3(5) regulates the procedure which must be followed by
the Minister when issuing a policy or granting a policy direction.

It provides:
“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
(b)
must, in order to obtain the view of interested persons, publish the
text of such policy direction by notice in the
Gazette
—
(i) declaring his or her intention to issue the policy direction;
(ii) inviting interested persons to submit written submissions in
relation to the 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 direction in the
Gazette
.”
[173]
A reading of section 3(5) reveals that it lays down three
requirements, two of which must be met before the issuing of a
policy.
The first is that the Minister must consult ICASA or
USAASA, as the case may be.  The second is that she or he must
obtain
the views of interested parties on the proposed policy.
To this end, the section requires the Minister to publish the text
of
the proposed policy in the Gazette.  This publication must
declare his or her intention to issue policy and invite interested

persons to submit written submissions on the policy.  The
publication must afford the interested parties at least 30 days

within which to submit written submissions and may also specify the
form to be followed in lodging those submissions.
[174]
The Minister is required to take those submissions into
account when finalising the policy.  The final version of the
policy
must also be published in the Gazette.
Lack of authority
[175]
e.tv argued that the impugned amendment constituted a binding
decision on ICASA by stipulating that:
“The [set top box] control system for the free-to-air [digital
terrestrial television] [set top boxes] shall . . . not have

capabilities to encrypt broadcast signals for the subsidised [set top
boxes].”
[176]
It was submitted that by so doing the amendment impermissibly
intruded into the terrain of ICASA, an independent authority
established
by the Constitution to regulate broadcasting.  It
was contended that the Minister’s authority to make policy or
amend
it, does not cover the making of binding decisions on set top
boxes control issues because those issues form part of the regulation

of broadcasting which falls exclusively under the jurisdiction of
ICASA.
[177]
This argument proceeds from an incorrect assumption.  It
is assumed that ICASA was bound to implement the amendment that said

the set top boxes shall not have capabilities to decrypt broadcast
signals for the subsidised set top boxes.  This premise

overlooks the express terms of section 3(4) which require both ICASA
and USAASA to merely consider policies when exercising their
powers
or performing their duties.  The obligation to consider does not
mean that these entities must implement those policies.
The
obligation is that they should take the policies into account.
It is left to these entities to choose, out of their own
free will,
to follow or implement the policies in question or to deviate from
them.
[178]
It is the power to choose whether to implement a particular
policy in performing duties which removes the inconsistency between
the policy-making power and the institutional independence of these
entities.  Therefore, it is incorrect to contend that ICASA
and
USAASA are bound by policies and policy directions made by the
Minister in terms of section 3 of the ECA.  They are not.
Consultation
[179]
e.tv submitted that section 3(5) applies to the process of
amending a policy and since Minister Muthambi had failed to comply
with
this section, the amendment was invalid for want of compliance
with the prescribed procedure.  It is true that
Minister Muthambi
did not adhere to the requirements in section
3(5) before effecting the amendment.  She did not publish the
text of the amendment
in the Gazette.  Nor did she declare her
intention to amend the policy.  She also failed to invite
interested persons
to make written submissions on the amendment she
contemplated effecting.
[180]
But this is not the end of the matter.  The antecedent
question is whether section 3(5) applies to the process of
amending
policy.  For if it does not, her failure to comply
would have no effect on the validity of the amendment.
[181]
The Minister, the South African Broadcasting Corporation
(SABC) and the Electronic Media Network (Pty) Ltd (M-Net) argued that
section
3(5) does not apply to an amendment.  They submitted
that the text of the provision expressly states that it applies when
a policy or policy direction is issued.  It is true that the
section makes no reference to an amendment.  But e.tv countered

by submitting that the word “issuing” must be given a
wider meaning to include both the issuing of an original policy
and
its amendments.  Construing section 3(5) as not applying to
amendments would, contended e.tv, undermine openness and consultation

promoted by the provision which must be interpreted purposively.
It submitted further that the section must be read in a
manner that
promotes the values of openness, transparency and accountability.
[182]
While one may not quibble with the approach advanced by e.tv
to the interpretation of section 3(5), it must be pointed out that
the approach concerned cannot be invoked to extend the scope of the
provision beyond the limits of its language.  The provision

states in unequivocal terms that the duty to consult and obtain views
of interested parties arises when issuing a policy or policy

direction.  The scope of the section is not determined by the
word “issuing” but by the words “policy”
and
“policy direction”.
[183]
Ordinarily these words may include amendments to policy or
policy direction.  However, section 3(5) must not be read in
isolation.
It must be read together with other parts of section
3.  For instance subsections (6), (7) and (8) make it clear that

a policy direction referred to in section 3(5) does not include an
amendment.  These subsections regulate the procedure that
must
be followed in amending a policy direction.  It would be
remarkably odd for Parliament to use the word “policy”
in
an expansive sense that includes amendments and the words “policy
direction” in a restrictive sense that excludes
amendments, in
the same sentence.
[184]
The scheme of section 3, when read in its entirety, suggests
that policy and policy direction as used in subsection (5) do
not include amendments.  Parliament considered it necessary to
regulate procedure for amendments of policy directions separately.

There appears to be no discernible reason for restricting this
separation of procedure to policy directions only.  The only

reasonable explanation that presents itself is that it was an
oversight on the part of Parliament not to include the amendment
of a
policy in the provisions of subsections (6), (7) and (8).
[185]
These subsections read:
“(6) The provisions of subsection (5) do not apply in respect
of any amendment by the Minister of a policy direction contemplated

in subsection (2) as a result of representations received and
reviewed by him or her after consultation or publication in terms
of
subsection (5).
(7) Subject to subsection (8), a policy direction issued under
subsection (2) may be amended, withdrawn or substituted by the
Minister.
(8) Except in the case of an amendment contemplated in subsection
(6), the provisions of subsection (3) and (5) apply, with the

necessary changes, in relation to any such amendment or substitution
of a policy direction under subsection (7).”
[186]
What emerges from an examination of these provisions is that
subsection (6) exempts the Minister from the procedural
obligations
under subsection (5) in the case of an amendment of a
policy direction where representations had been received after
publication
in terms of subsection (5).  This means that if
at the time of issuing the original policy direction there was
compliance
with subsection (5) and representations were received,
that process need not be repeated when the Minister seeks to amend
the original
policy direction.  This makes perfect sense.
Otherwise the process would be unnecessarily repetitious.
[187]
But if no representations were received following the
subsection (5) publication, the Minister must repeat the publication
process
in the Gazette before effecting an amendment.  This is
required by subsection (8).
[188]
The Minister argued forcefully that when Parliament amended
subsections (2), (3), (4) and (5) with effect from 21 May 2014, it
overlooked
to amend subsections (6), (7) and (8), to extend the
latter subsections to cover the amendment of a policy.
Apparently before
the 2014 amendments, subsection (5) made
reference to the issuing of a policy direction only.  Hence
subsections (6),
(7) and (8) referred to amending a policy direction
only.  When a “policy” was included in subsection
(5), these
three subsections were not amended to refer to a policy as
well, owing to an oversight.
[189]
It does not appear that the distinction in the approach to
procedure relating to amending policies and policy directions was
deliberate.
As mentioned, one cannot discern any reason for
this distinction and the purpose it serves.  In the present
circumstances
I accept that the source of the distinction is the
oversight mentioned by the Minister.  Consequently, subsections
(6), (7) and (8)
must be read as applying to the amendment
of a policy.
[190]
Reading words into a statutory provision in order to cure a
defect, is a remedy that our courts frequently apply in appropriate
circumstances.  Sometimes this is done to remedy a
constitutional defect.
[106]
On other occasions, it is done in an interpretation exercise.
[107]
Long before the adoption of the Constitution, our courts added words
to a statute where it was practically impossible to
have a “sensible
meaning” without reading words into the provision.
[108]
In
Vauhghan-Heapy
the Court said:
“It is, however, quite apparent from pronouncements such as
these that the power in a Court to supplement the language of
a
statute is confined to those rare instances where incomprehensibility
would be the alternative to doing so.  It is necessity
therefore
that becomes the mother of intervention.”
[109]
[191]
Here the necessity stems from the fact that without adding the
word “policy” to  subsections (6), (7) and (8),
there would be no provision regulating an amendment of policy.
It would be absurd to require the Minister to follow a consultation

procedure when issuing a policy but to be free to do as she or he
pleases when she or he amends the same policy.  This is
to
happen where the ECA prescribes a procedure for amending a policy
direction.  That could not have been contemplated at
the time
the 2014 amendments of the ECA were enacted.
[192]
Accordingly, I conclude that Minister Muthambi was exempted by
subsection (6) from repeating the subsection (5) process which

was followed by Minister Matsepe-Casaburri when she issued the
original policy.  It is common cause that representations were

received before the policy in question was issued.  There was no
need for Minister Muthambi to repeat the process.
Procedural
rationality
[193]
Relying on decisions of this Court in
Democratic
Alliance
[110]
and
Albutt
[111]
as well as the decision of the Supreme Court of Appeal in
Scalabrini,
[112]
e.tv argued that the amendment was procedurally irrational.
Counsel for e.tv placed a heavy reliance on the following statement

made in
Scalabrini
:
“[T]here are indeed circumstances in which rational
decision-making calls for interested persons to be heard.  That

was recognised in
Albutt v Centre for the Study of Violence and
Reconciliation and Others
, which concerned the exercise by the
President of the power to pardon offenders whose offences were
committed with a political
motive . . . it was held that the decision
to undertake the special dispensation process under which pardons
were granted, without
affording the victims an opportunity to be
heard, must be rationally related to the achievement of the
objectives of the process.”
[113]
[194]
It must be pointed out immediately that here we are concerned
with the question whether e.tv should have been afforded the
opportunity
to make fresh or further representations to those made
under the subsection (5) process before the original policy was
made.
We are not dealing with a case where there were no
representations at all.  The circumstances referred to in
Scalabrini
do not arise here in light of the exemption in
section 3(6).
[195]
Invoking
Albutt
and
Democratic Alliance
, e.tv
submitted that there was no rational relation between the means
adopted in the amendment it challenged and the object of
the
amendment.  In
Democratic Alliance
this Court defined the
procedural rationality standard in these terms:
“The conclusion that the process must also be rational in that
it must be rationally related to the achievement of the purpose,
for
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

everything done in the process of taking that decision, constitute
means towards the attainment of the purpose for which the power
was
conferred.”
[114]
[196]
Quite evidently what this statement means is that whatever
means chosen must be rationally linked to the realisation of the
purpose
for which the power was conferred.  In the case of
multiple steps, the question is whether one of those steps is “so

unrelated to the end as to taint the whole process with
irrationality”.  This illustrates that the standard does
not
require each and every step taken to be rationally related to the
purpose.  The step that is not rationally related to the
purpose
must have undermined the achievement of the purpose for which the
power was conferred, for it to have tainted the whole
process with
irrationality.
[197]
Yacoob ADCJ outlined this part of the standard in
Democratic
Alliance
thus:
“We must look at the process as a whole and determine whether
the steps in the process were rationally related to the end
sought to
be achieved and, if not, whether the absence of a connection between
a particular step (part of the means) is so unrelated
to the end as
to taint the whole process with irrationality.”
[115]
[198]
When applying the rationality test a court must always bear in
mind this caution from
Affordable Medicines
:
“As the
Lawrence
case makes it plain, the Court sought
to achieve a proper balance between the role of the legislature on
the one hand, and the role
of the courts on the other.  The
rational basis test involves restraint on the part of the Court.
It respects the respective
roles of the courts and the legislature.
In the exercise of its legislative powers, the legislature has the
widest possible
latitude within the limits of the Constitution.
In the exercise of their power to review legislation, courts should
strive
to preserve to the legislature its rightful role in a
democratic society.  It is this guiding principle that should
inform
the test for determining whether legislation that regulates
practice but does not, objectively viewed, impact negatively on
choice,
passes constitutional scrutiny”
[116]
[199]
Underpinning this approach is the principle that a proper
balance must be maintained between the role of other arms of
Government
and the courts.
[117]
[200]
Here it is not disputed that Minister Muthambi sought to
achieve two purposes through the impugned amendment.  The first
was
to secure the set top boxes and the second was to save costs.
The question that arises for determination is whether there
was a
rational connection between the amendment (means) and the object of
saving costs.  The question of security is not disputed.
[201]
It cannot be gainsaid that the decryption capability would
increase costs of producing the set top boxes.  Even e.tv
asserted
that if it were to produce set top boxes on its own the
costs would be prohibitively high, hence it was in favour of the
decryption
capability being added to the set top boxes subsidised by
Government.  It was submitted that e.tv was willing to cover the

additional costs and refund the Government later.
[202]
It follows that excluding the decryption capability from the
set top boxes would save costs.  Accordingly, there is a
rational
connection between the amendment and the objective of saving
costs.
[203]
But e.tv contends that its offer to cover the additional costs
and refund Government later bears a rational relation to the purpose

of saving costs.  It is not clear to me how a policy that says
Government will pay for the additional costs during production
of the
set top boxes only to be refunded later, would be saving costs.
It seems to me that such a policy would be requiring
Government to
advance money to e.tv on the promise of a refund later.
[204]
e.tv does not offer to pay the additional costs at the time of
production, which would avoid the paying of the costs by Government

at the initial stage.  Only if it were to be so, one might talk
of the offer constituting a cost saving measure.  This
is
because Government would not be required to carry the additional
costs occasioned by the inclusion of the decryption capability.

However, even if the offer by e.tv were to be rationally related to
the purpose of saving costs, it would not mean that the means
chosen
by the Minister were not rationally related to that purpose.  It
would be a question of different means, both related
to the same
purpose.  That is hardly a basis on which the procedural
rationality ground may succeed.
[205]
In
Albutt
this Court was at pains to point out that the
discretion to choose the means to achieve the objectives of a statute
is that of
the Executive.  And where that discretion has been
exercised to select certain means, interference by courts is not
warranted
if the selected means are rationally connected to the
objective sought to be achieved.  There, Ngcobo CJ stated:
“
The Executive has a wide discretion in
selecting the means to achieve its constitutionally permissible
objectives.  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.  But, where the
decision is challenged on the grounds of rationality, courts are
obliged to
examine the means selected to determine whether they are
rationally related to the objective sought to be achieved.
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.
And if
objectively speaking, they are not, they fall short of the standard
demanded by the Constitution.”
[118]
[206]
It follows that even if the means
identified by e.tv were more appropriate, it cannot be said that e.tv
has established the ground
of procedural irrationality.
[207]
This matter is distinguishable from
Albutt
and
Democratic Alliance
.
In
Albutt
the
objectives sought to be achieved were “national unity and
national reconciliation”.  This Court held that the
means
chosen by the President which excluded hearing the victims of the
offences committed with a political motive, could not achieve
those
objectives.  It was for this reason that it was said that there
was no rational connection between the chosen means
and the
objectives in question.
[208]
Similarly, in
Democratic
Alliance
the President was empowered to
appoint “a fit and proper person” as the National
Director of Public Prosecutions.
A commission of inquiry had
pronounced that the candidate chosen by the President was not a
person of honour and integrity.
These attributes were
stipulated by the empowering legislation.  In assessing the
suitability of the candidate, the President
failed to investigate
whether those findings accurately reflected the character of that
candidate.  In the light of the adverse
findings by the inquiry,
the President could not rationally have been satisfied that the
chosen candidate met the requirements
for appointment.
Consequently the means selected could not have enabled him to attain
the purpose for which the power was
conferred.
[209]
It is apparent from these cases that
the means selected in them thwarted the achievement of the purposes
for which the power was
conferred.  The present is not such a
case.
[210]
For these reasons I support the order
proposed in the first judgment.
For the First
Applicant: D Unterhalter SC, M Norton SC and M Mokhoaetsi instructed
by Werksmans Attorneys
For the Second
Applicant: W Trengrove SC and K Tsatsawane instructed by Gildenhuys
Malatji Incorporated
For the Third
Applicant: A R Bhana SC instructed by Ncube Incorporated Attorneys
For the First
Respondent: S Budlender, J Berger and R Tshetlo instructed by Norton
Rose Fulbright South Africa Incorporated
For the Third and
Fourth Respondents: M Du Plessis and L Kelly instructed by Nortons
Incorporated
[1]
Sections 43 and 44 of the Constitution.
[2]
Section 165 of the Constitution.
[3]
Section 85 of the Constitution.
[4]
Section 85(2)(b) of the Constitution.
[5]
Doctors for Life International v Speaker of the National Assembly
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006 (12) BCLR 1399
(CC)
(
Doctors for Life
) at paras 37-8.
[6]
Economic Freedom Fighters v Speaker of the National Assembly
[2016] ZACC 11
;
2016 (3) SA 580
(CC);
2016 (5) BCLR 618
(CC) at paras 92-3.
[7]
Albutt v Centre for the Study of Violence and Reconciliation
[2010] ZACC 4
;
2010 (3) SA 293
(CC);
2010 (5) BCLR 391
(CC) at
para 51.
[8]
e.tv (Pty) Ltd v Minister of Communications
,
unreported judgment of the High Court of South Africa, Gauteng
Division, Pretoria, Case No 26166/2015 (24 June 2015).
[9]
e.tv (Pty) Ltd v Minister of Communications
[2016] ZASCA 85
;
2016 (6) SA 356
(SCA)
.
[10]
36 of 2005.
[11]
3 of 2000.
[12]
Minister of Education v Harris
[2001] ZACC 25
;
2001 (4) SA
1297
(CC);
2001 (11) BCLR 1157
(CC) (
Harris
).  In
January 2000 the Minister of Education published a notice which
stated that a learner may only be admitted to grade
one at an
independent school if he or she turns seven in the course of that
calendar year.  The validity of the notice was
challenged; one
of the bases being that it unfairly discriminated against children
of a certain age.  The Court held that
the Minister, under the
National Education Policy Act, had the power to issue the notice he
did, however that Act only gave the
Minister power to determine
policy and not to impose binding law.  Thus in issuing the
notice
that the Minister intended to have binding effect
, the
Minister exceeded his powers and accordingly infringed the
constitutional principle of legality.
[13]
Doctors for Life
above n 5 at paras 37-8.
[14]
Section 192 of the Constitution.
[15]
The word “will” appears in the following paragraphs of
the
Amendment of Broadcasting Digital Migration
Policy, GN 232
GG
38583, 18 March 2015 (2015 Amendment)
: 1.1.8, 3.3.1, 5.1.2.7,
5.1.2(A), 5.1.4, 7.2, and the executive summary.  The word
“shall” appears in the following
paragraphs of the 2015
Amendment: 5.1.2(B), 7.2 and the executive summary.  The word
“may” appears in the following
paragraphs of the 2015
Amendment: 5.1.2(C) and the executive summary.
[16]
Broadcasting Digital Migration Policy, GN 958
GG
31408, 8 September 2008 (2008 Policy)
, paragraph 1.2.3(e).
[17]
Amendment of Broadcasting Digital Migration
Policy, GN 124
GG
35051, 17 February 2012
, substitution of paragraph 2 of the
Foreword by the Minister.
[18]
2008 Policy above n 16, paragraph 1.2.3(a).
[19]
Arun Property Development (Pty) Ltd v City of Cape Town
[2014] ZACC 37
;
2015 (2) SA 584
(CC);
2015 (3) BCLR 243
(CC) (
Arun
)
at para 46.
[20]
I have assumed without deciding that this policy deals with matters
in relation to which it is not supposed to be binding.
All of
the above is based on the parties’ submissions including the
Minister’s concession that her policy amendment
was not meant
to be binding, and the reading of the impugned provisions.
But, it is worth noting that to the extent that
the policy relates
to the Universal Service Access Fund that is administered by USAASA,
that Fund is in terms of section 87(4)
of the ECA to be administered
“subject to the control and in accordance with the
instructions of the Minister”.
[21]
Section 192 of the Constitution provides:
“National legislation must establish an independent authority
to regulate broadcasting in the public interest, and to ensure

fairness and a diversity of views broadly representing South African
society.”
[22]
If injustice or prejudice is perceived then steps must be taken even
in terms of the provisions of the
Promotion of Access to Information
Act 2 of 2000
.
[23]
Democratic Alliance v President of the Republic of South Africa
[2012] ZACC 24
;
2013 (1) SA 248
(CC);
2012 (12) BCLR 1297
(CC)
at para 36.
[24]
Minister of Defence and Military Veterans v Motau
[2014] ZACC
18
;
2014 (5) SA 69
(CC);
2014 (8) BCLR 930
(CC) (
Motau
) at
para 69.
[25]
Id;
Albutt
above n 7 at para 51; and
Democratic Alliance
above n 23 at para 36.  See also
Minister of Home
Affairs v Scalabrini Centre, Cape Town
[2013] ZASCA 134
;
2013
(6) SA 421
(SCA) (
Scalabrini
) at para 36.
[26]
The
Independent Communications Authority of South Africa Act 13 of
2000
.
[27]
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 89.
[28]
See
Motau
above n 24,
Albutt
above n 7; and
Democratic
Alliance
above n 23.
[29]
Van der Merwe v Road Accident Fund
[2006] ZACC 4
;
2006 (4) SA
230
(CC);
2006 (6) BCLR 682
(CC) at para 33.
[30]
Doctors for Life
above n 5 at paras 37-8;
Glenister v
President of the Republic of South Africa
[2008] ZACC 19
;
2009
(1) SA 287
(CC);
2009 (2) BCLR 136
(CC) at para 19; and
Economic
Freedom Fighters
above n 6 at paras 92-3.
[31]
Biowatch Trust v Registrar Genetic Resources
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) (
Biowatch
) at
para 43.
[32]
Id.
[33]
36 of 2005.
[34]
Section 1(d) of the Constitution.
[35]
Doctors for Life
above n 5 at para 115.
[36]
Section 181(1)(a)-(f).
[37]
Section 181(2) provides that Chapter Nine institutions—
“are independent, and subject only to the Constitution and the
law, and they must be impartial and must exercise their
powers and
perform their functions without fear, favour or prejudice.”
[38]
It may be an anomaly resulting from late inclusion during the
drafting process that the authority section 192 requires Parliament

to create is not listed together with the other six Chapter Nine
institutions in section 181(1).  See Delaney “The

Constitutional Fate of ICASA in a Converged Sector” (2009) 25
SAJHR
152.
[39]
See [70].
[40]
13 of 2000.
[41]
Section 2(o) of the ECA reads:
“The primary object of this Act is to provide for the
regulation of electronic communications in the Republic in the

public interest and for that purpose to–
. . .
(o) subject to the provisions of this Act, promote, facilitate and
harmonise the achievement of the objects of the related

legislation.”
The ECA defines
“related legislation” as meaning the
Broadcasting Act 4
of 1999
, the ICASA Act and any regulations, guidelines and
determinations made in terms of that legislation and not
specifically repealed
by the ECA.
[42]
Section 2 of the ICASA Act.
[43]
Section 2(a) of the ICASA Act.
[44]
Section 2(b) of the ICASA Act.
[45]
Section 2(bA) of the ICASA Act requires the independent authority
the statute establishes to “regulate postal matters in
terms
of the Postal Services Act”.
[46]
Section 2(c) of the ICASA Act provides that the object of the Act is
to establish an independent authority which is to “achieve
the
objects contemplated in the underlying statutes”.
The ICASA Act
defines “underlying statutes” to mean the
Broadcasting
Act 4 of 1999
, the
Postal Services Act 124 of 1998
and the ECA
.
[47]
Section 3(1) of the ECA Act.
[48]
Section 2 of the ECA.
[49]
Section 3(4) of the ECA provides that ICASA in exercising its powers
and performing its duties under both the ECA and the ICASA
Act “must
consider policies made by the Minister” in terms of section
3(1).  The parallel provision in the ICASA
Act is section
4(3A)(a).
[50]
See [30].
[51]
Section 2(a) of the ECA.
[52]
Section 2(f), read with the definition of “ICT” in
section 1 of the ECA.
[53]
Section 2(g) of the ECA.
[54]
Section 2(n) of the ECA.
[55]
Section 2(r) of the ECA.
[56]
Section 2(x) of the ECA.
[57]
See [26] to [30].
[58]
Section 85 of the Constitution provides:
“(1) The executive authority of the Republic is vested in the
President.
(2) The President exercises the executive authority, together with
the other members of the Cabinet, by—
(a) implementing national legislation except where the Constitution
or an Act of Parliament provides otherwise;
(b) developing and implementing national policy;
(c) co-ordinating the functions of state departments and
administrations;
(d) preparing and initiating legislation; and
(e) performing any other executive function provided for in the
Constitution or in national legislation.”
[59]
Kaunda v President of the Republic of South Africa
[2004]
ZACC 5
;
2005 (4) SA 235
(CC);
2004 (10) BCLR 1009
(CC) at para 77.
[60]
Section 43 of the Constitution provides that, in the Republic, the
legislative authority of the national sphere of government
is vested
in Parliament.  Section 55 provides for the exercise by the
National Assembly of its legislative power.
[61]
This chimes with the principle of subsidiarity in invoking a right
in the Bill of Rights.  It is well established that a
litigant
cannot directly invoke the Constitution to extract a right he or she
seeks to enforce without first relying on, or attacking
the
constitutionality of, legislation enacted to give effect to that
right.  See
My Vote Counts NPC v Speaker of the National
Assembly
[2015] ZACC 31
;
2016 (1) SA 132
(CC);
2015 (12) BCLR
140
(CC) at paras 44-66 (minority judgment) and paras 122, 159 and
181 (majority judgment).
[62]
Section 3(1A) of the ECA provides:
“The Minister may, after having obtained Cabinet approval,
issue a policy direction in order to—
(a) initiate and facilitate intervention by Government to ensure
strategic ICT infrastructure investment; and
(b) provide for a framework for the licensing of a public entity by
the Authority in terms of Chapter 3.”
[63]
See [27].
[64]
See [26] to [30].
[65]
Director of Public Prosecutions, Transvaal v Minister for Justice
and Constitutional Development
[2009] ZACC 8
;
2009 (4) SA 222
(CC);
2009 (7) BCLR 637
(CC) at para 183.
[66]
3 of 2000.
[67]
The definition of administrative action in PAJA expressly excludes
the section 85(2)(b) national policy-making function.
[68]
Sections 80-91 of the ECA.
[69]
Section 80 of the ECA.
[70]
Section 3(4) of the ECA.
[71]
Section 81(1) of the ECA.
[72]
Section 87(4) of the ECA.
[73]
Section 3(4) of the ECA.
[74]
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) at para 84.
[75]
Motau
above n 24 at fn 101.
[76]
Id at para 69.
[77]
Democratic Alliance
above n 23 at para 37.
[78]
Id at para 39.
[79]
Id.
[80]
See [78].
[81]
See [80].
[82]
Id.
[83]
See [46].
[84]
Paragraph 5.1.2.7(A) of Minister Carrim’s proposal.
Proposed
Amendment of Broadcasting Digital
Migration Policy (As Amended), GN 954
GG
37120, 6 December 2013
.  Minister Carrim’s
explanatory statement of 20 December 2013 spelled this
out:
“(i) The cost to the government of control will be about R20
per subsidised box.
(ii) Broadcasters wanting to use the control system will have to pay
the government.  They will pay the other costs related
to the
control system.”
[85]
Minister Carrim explained in the explanatory statement:
“In deciding on government policy, we took the following
criteria into account:
(i) The need to begin implementing the migration as soon as
possible, given that South Africa is five years behind
schedule,
the ITU June 2015 deadline looms and there is an urgent
need to release radio frequency spectrum.
(ii) Ensure that the Government subsidy is used productively.
(iii) Stimulate the local electronics industry and create jobs.
(iv) Benefit emerging entrepreneurs.
(v) Reduce prospects of the South African market being flooded by
cheap [set top boxes] that are not fully functional.
(vi) Best serve the viewers’ needs.
(vii) Protect the interests of the SABC against commercial
broadcasters.
(viii) Be sensitive to rapid changes in the broadcasting and ICT
sector as a whole.
(ix) Recognise the increasing use of mobile phones, rather than
televisions, for Internet and other services.
(x) Reduce the extent of monopolisation and encourage competition by
creating space for new players in the pay television market
without
them unfairly benefitting from the Government subsidy.
(xi) Recognise the majority of the broadcasters are opposed to a
control system.
(xii) Reduce the prospects of the possibility of more challenging
legal action from broadcasters and entrepreneurs that would
hold-up
the migration process.”
[86]
Section 2(f) of the ECA.
[87]
It said it will be “making use of the [set top box] Control
system to encrypt its [digital terrestrial television] channels

irrespective of whether other free-to-air channels choose to do so”.
[88]
Released on 5 March 2015.
[89]
The Department’s statement welcomed “the Broadcasting
Digital Migration Amendment Policy with the inclusion of the
control
system in the Set Top Box”.
[90]
Paragraph 5.1.2(A) of the Amendment.
[91]
Paragraph 5.1.2(B) of the Amendment.
[92]
All the parties understood this to be the effect of the Amendment,
though the Minister’s answering affidavit appears to
display
some confusion about this.  That forms a separate basis on
which e.tv seeks to review her decision – which
in view of our
conclusion is not necessary to consider here.
[93]
The Minister’s affidavit proceeds:
“In order to honour the right of [free-to-air] broadcasters to
decide for themselves whether they would wish to encrypt
their
broadcasts, the [Broadcasting Digital Migration] Policy leaves the
choice to do so to [free-to-air] broadcasters, but at
their expense.
These include privately owned and funded [free-to-air] broadcasters,
as well as the public broadcaster, the SABC.”
[94]
e.tv added that it was—
“already at an advanced stage of its negotiations with
Nagravision.  Nagravision is an international company that

specialises in providing encryption systems and software.  It
already provides, for example, the encryption system and software
to
be used by Sentech to encrypt the broadcast signals transmitted by
satellite on a free-to-air basis to areas of the country
which will
not be able to receive terrestrial broadcasts once digital migration
occurs.  These encrypted broadcasts signals
are also already
fed by Sentech to the [digital terrestrial television] transmitters.
The main costs in relation to encryption
concerns the software
license cost, which is charged on a per [set top box] basis.  The
SABC suggest, for example, in its
answering affidavit that a figure
of $2 per [set top box] is charged - meaning a total of R100 million
for the five million boxes.
The computation of and the precise
amount involved are the main issues in the ongoing negotiations
between e.tv and Nagravision.
This is so given that e.tv
accepts that it will bear this cost by virtue of its decision to
encrypt, in accordance with
clause 5.1.2(C) of the Policy.
(Obviously if other broadcasters in due course wished to encrypt,
e.tv and those broadcasters
would have to share the costs
concerned).”
[95]
See [134].
[96]
Democratic Alliance
above n 23 at para 37.
[97]
Id.
[98]
Section 3(5) provides:
“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
(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
.”
[99]
See [41].
[100]
See [61].
[101]
Id.
[102]
See [14].
[103]
36 of 2005.
[104]
13 of 2000.
[105]
Section 192 provides:
“National
legislation must establish an independent authority to regulate
broadcasting in the public interest, and to ensure
fairness and a
diversity of views broadly representing South African society.”
[106]
National Coalition for Gay and Lesbian Equality v Minister of
Home Affairs
[1999] ZACC 17; 2000 (2) SA 1 (CC); 2000 (1) BCLR
39 (CC).
[107]
Masetlha v President of the Republic of South Africa
[2007]
ZACC 20
;
2008 (1) SA 566
(CC);
2008 (1) BCLR 1
(CC) at paras 66-8;
Govender v Minister of Safety and Security
[2001] ZASCA 80;
2001 (4) SA 273 (SCA).
[108]
Vauhghan-Heapy v Natal Performing Arts Council
1991 (1) SA
191
(D);
S v De Abreu
1975 (1) SA 106
(RA);
R v Le Roux
1959 (4) SA 342
(C);
Ngwenya v Hindley
1950 (1) SA 839 (C).
[109]
Vauhghan-Heapy
id at 196.
[110]
Democratic Alliance
above n 23.
[111]
Albutt
above n 7.
[112]
Scalabrini
above n 25
.
[113]
Id at para 68.
[114]
Democratic Alliance
above n 23 at para 36.
[115]
Id at para 37.
[116]
Affordable Medicines Trust v Minister of Health
[2005] ZACC
3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) (
Affordable
Medicines
) at para 86
.
[117]
Id at para 83.
[118]
Albutt
above n 7 at para 51.