Muthambi lawyer says encryption decision not subject to court review

The policy decision made by Communications Minister Faith Muthambi in 2015 on the encryption capability of government-supplied set top boxes for digital migration is not reviewable by a court.

This is the submission made by Muthambi’s counsel Wim Trengove SC before the Constitutional Court on Tuesday.

Muthambi's counsel‚ together with those of the South African Broadcasting Corporation and Electronic Media Network‚ was in court seeking to set aside the Supreme Court of Appeal’s judgment last year.

The judgment set aside Muthambi’s amendment of the Digital Broadcasting Migration Policy in 2015. In that amendment‚ Muthambi stated that the set top box control system shall not have encryption capabilities.

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This meant any broadcaster which wanted to broadcast encrypted signals should bear the costs of supplying five million boxes at its cost.

e.tv took issue with this policy. The appeal court agreed with e.tv‚ and said Muthambi's amendment was irrational and in breach of the principle of legality as there was no process of consultation.

Trengove said Muthambi’s policy amendments were made following submissions received from stakeholders by her predecessor‚ Yunus Carrim‚ in 2013.

“She said that the state-sponsored set-top boxes would not have encryption capability. It was a clarification of the policy as it stood‚” Trengove said.

He added that mere policy making did not constitute an exercise of public power.

“The policy is to provide guidance to the executive in the transition from analogue to digital. It is not binding on anyone. Why should it be reviewable if it is not binding on anyone‚” Trengove said.

Judge Sisi Khampepe asked Trengove whether it was a requirement for the exercise of public power to be binding before that decision could be reviewed. Trengove said it was.

“Courts do not engage in debates about the validity of decisions which have no effect. Courts do not intervene where it is not necessary to do so.”

Trengove said if government policy was subject to review‚ courts would be inundated with numerous review challenges by the citizens.

He also said e.tv had no legal interest in the amendment on encryption.

“They (e.tv) have a commercial interest. It lies not in the policy but in the ultimate implementation. It is also not clear what that commercial interest is‚” Trengove said.

The case revolves around the country’s long delayed migration from analogue to digital broadcasting.

About eight million households do not have television sets that have an in-built device to convert signals that are broadcast digitally.

This means that for the digital migration to happen‚ there is a need for set-top boxes to receive and convert the digital signal.

About five million houses cannot afford the cost of the set-top boxes and government has decided to supply them with these boxes at no cost to them.

At issue in this case is whether government-supplied set-top boxes should be able to decrypt signals that are encrypted.

e.tv wants to encrypt signals it transmits and wants the subsidised set top boxes to have decryption capability.

The matter continues.