e.tv seeks Constitutional Court appeal against ‘unlawful’ digital migration

e.tv wants to take the digital migration ruling to the Constitutional Court.

e.tv wants to take the digital migration ruling to the Constitutional Court. Getty Images

  • e.tv says its application to be apex court to hear its case is matter of constitutional importance.
  • About 36% of the 15.8 million television households still receive free-to-air TVs via analogue transmission, it claims.
  • A high court dismissed e.tv’s case in March but extended the switch-off date to end of June.

Free-to-air private broadcaster e.tv has made a direct application to the Constitutional Court to appeal the dismissal of its bid to scrap the government’s end of March deadline for the country’s migration from analogue to digital television signal.

In its petition to the court, the company says the switch-off deadline, although it was extended by the court to 30 June, is “unlawful” and “unconstitutional”, as it will cut off millions of poor households who do not yet have access to set-top boxes.

Set-top boxes are government-sponsored devices given to indigent households with an income of R3 500 or less. e.tv argues that the process of rolling out set-top boxes has not been properly conducted, and the migration, despite the court-extended deadline, will affect its viewers who depend on free-to-air broadcasts.

“The central issue in this case is the constitutional rights of millions of the indigent and vulnerable South Africans who are reliant on analogue television broadcasting to access news, information, and entertainment,” states the affidavit.

It adds that its appeal to the apex court on an urgent basis is meant to force the Minister of Communications and Digital Technologies Khumbudzo Ntshavheni to comply with her constitutional obligations to respect, protect, promote the citizen’s rights to access to information and its own rights.

Last month, the North Gauteng High Court in Pretoria ruled that e.tv had not proven that there were 2.5 million households that still required set-top boxes.

The broadcaster says 36% of the 15.8 million television households still receive free-to-air TVs via analogue transmission. It further lambasts the minister for the “sudden imposition” of the 31 October 2021 cut-off date for registration for government-sponsored set-top boxes, which they claim prevented millions of qualifying households from making applications.

Earlier this week, Cabinet said in a statement that the 507 251 households that registered by 31 October last year will be connected no later than 30 June 2022, while the 260 868 households that registered between 31 October 2021 and 10 March 2022 would receive their set-top boxes by end September.

The company still maintains that digital migration “can and should happen” but the process must be conducted in a constitutionally compliant and appropriate manner.

“That requires that the government take reasonable steps to prove set top boxes to access digital television as per its won promises to the public, rather than imposing a hard and cynically short deadline which had the obvious result of leaving many millions of people behind.”

e.tv noted that in dismissing the application, the high court found that millions of South Africans who will lose access to television broadcasting entirely have “no standing” to challenge the decision, and that the court also went on to accept that there was a potential risk to rights posed by the minister’s insistence on 31 March as the hard switch-off date and moved extended the deadline by three months.

The switch-off of analogue transmitters is expected to free up much needed frequencies to be used by the telecommunications that acquired additional spectrum in the March auction.

Switching off the analogue broadcasting signal has been on the agenda of government since 2005 and initially envisaged to be concluded in time for the 2010 FIFA World Cup tournament, but the programme has suffered multiple setbacks and the country missed the June 2015 deadlines set by the International Telecommunication Union.