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ConCourt rules against e.tv in digital encryption case

e.tv had challenged the government, saying an unencrypted system would hurt its ability to compete as encryption would allow government to offer better services to the public.

The Constitutional Court. Picture: Gia Nicolaides/EWN.

JOHANNESBURG – The Constitutional Court has ruled that government did not behave unconstitutionally when it decided that it would implement a policy of unencrypted digital terrestrial television.

e.tv had challenged the decision, saying that an unencrypted system would hurt its ability to compete and that encryption would allow government to offer better services to the public.government to offer better services to the public.

The court ruled by five judges to four that government can continue to use an unencrypted system for digital terrestrial television and that e.tv's legal bid to stop the system must fail.

But judges have also criticised former communications minister Faith Muthambi for her conduct in refusing to name who she spoke to when she changed her mind from using an encrypted system to using an unencrypted system.

e.tv had said that using the unencrypted system would make it impossible for it to compete against other players over the longer term.

Writing for the majority, Chief Justice Mogoeng Mogoeng opened his ruling with the statement: “Ours is a constitutional democracy - not a judiciocracy.”

He then said this means that government - as the executive - must have the power to make policy, before saying that government did, in fact, conduct a proper process of consultation before deciding to use the unencrypted system.

But Mogoeng says this is not because of then Communications Minister Faith Muthambi, but because of the actions of the previous Minister Yunus Carrim.

He said that while Muthambi did not properly consult with e.tv when making her decision to use the unencrypted system, previous communications minister Carrim had fulfilled the legal obligations of the department when he had consulted with e.tv in a previous process.

Both Mogoeng's judgment and the dissenting judgement agreed that Muthambi was wrong to not explain who she spoke to when she changed her mind on this issue.

Mogoeng also castigated e.tv, saying it first argued strongly for an unencrypted system and then argued against it.

Mogoeng also said the effect of Muthambi's decision was to virtually maintain the status quo in terms of the relationships and obligations the various broadcasters have.

In their judgment, four other judges said they would have come to a different decision and that Muthambi had not explained why her conduct did not open the door to secret lobbying and influenced peddling.

(Edited by Zinhle Nkosi)