The Pretoria high court has interdicted the minister of communications and digital technologies from taking any steps to implement the switch-off of analogue signals, which was set to happen on March 31.
The court also said the operation of the final analogue switch-off (ASO) date, as announced by the minister on December 5 2024, was suspended.
In addition, the court interdicted Sentech from taking any steps to implement the switch-off of analogue signals and ending dual illumination. Dual illumination refers to when both analogue and digital television signals are transmitted simultaneously before the analogue signal is switched off.
If the ASO had gone ahead, it would have meant that millions of people who rely exclusively on analogue transmission to watch TV would not have been able to..
The judgment was passed on Wednesday after an urgent application by e.tv, Media Monitoring Africa and SOS Support Public Broadcasting Coalition.
The application was in two parts. Part A was an urgent application for an interdict pending the final determination of the Part B review of the decision to set March 31 as the ASO date.
Anthony Norton, MD of Nortons Inc, the law firm representing e.tv, said the broadcaster had never obstructed the move to digital migration but wanted migration to be done in a lawful and orderly fashion.
“That must mean people cannot be left behind. There was a promise by government that indigent South Africans will not be left behind and that they will all receive set top boxes (STBs) before analogue transmission was cut off.”
Analogue TV sets are not able to display information received from digital frequencies and need a STB to convert digital transmissions to analogue transmissions.
The application arose as a result of the implementation of the digital migration policy which is led by the minister. Digital migration is the process through which the broadcast of television is migrated from the original analogue technology to digital technologies and frequency signals.
Broadcast digital migration is designed to free “space” on the electromagnetic spectrum in the 700MHz and 800MHz frequency “band” which has been reallocated for use by the telecommunication companies.
The process end of digital migration is ASO, which signifies the time when South Africa ceases analogue television broadcasting.
From the numbers reported by the minister it is quite apparent that it is not his case that these registered households will have STBs installed by March 31 2025. Не unequivocally states that such people will receive STBs by December 31 2025, yet he persists in opposing this application,
— Judge Selby Baqwa
“When this happens, e.tv's, the SABC's and numerous community broadcasters allocation of the requisite analogue frequency for analogue broadcasting will come to an end,” noted judge Selby Baqwa.
The issue for determination in urgent application was whether to cut off millions of people from access to television or whether they should retain that access pending the outcome of the applicants' review.
The applicants submitted the people's constitutional right freedom of expression, which includes freedom to receive information, would be irreparably harmed.
The applicants contended they were not consulted when the cabinet decided to set the end of March as the analogue switch-off date. This was contested by the minister.
Baqwa said one of the critical questions to address to determine the ASO was how many people would be left without access to television broadcasts if the ASO was allowed to proceed on March 31.
He said according to the most conservative estimates provided by the minister, as of February 21, 391,513 households were registered for set top boxes but had not yet received them. At the Stats SA ratio of 3.2 people per household, this translated to 1,252,841 people.
Baqwa said according to Sentech's presentation to parliament on February 27, the numbers were higher than the minister's at 421,000 households which translates into 1,347,200 people.
“From the numbers reported by the minister it is quite apparent that it is not his case that these registered households will have STBs installed by March 31 2025. Не unequivocally states that such people will receive STBs by December 31 2025, yet he persists in opposing this application,” Baqwa said.
Baqwa said the minister bore the onus to establish that any limitation of rights was reasonable and justifiable.
“Yet on the minister's own version, he has deliberately embarked on an irrational process which will not achieve the objective identified by the Constitutional Court to transition to digital television without causing millions of people to lose access to television on the analogue switch-off date.
Baqwa said the minister had over a decade repeatedly promised indigent households that the ASO would not sever their access to television access.
Baqwa said the harm to be suffered by ASO was not just a temporary inconvenience.
“Each day without access to news, public service announcements and educational programming results in irreversible loss of knowledge, awareness and democratic participation.”
Norton said recent figures provided by the Broadcast Research Council showed that about 28% of the population — translating into about 13.8-million people — rely on analogue television.
“As matters now stand only about 1.4-million people are in households registered to receive set-top boxes, which means that the vast majority of people who access television using analogue transmission would be left in the dark if analogue switch-off took place.”
Norton said given the current rate of installation of set-top boxes, it was extremely unlikely that sufficient set-top boxes would be installed by December 2025 to accommodate even those households that had registered for the boxes, let alone all the millions of people who rely on analogue transmission for STBs.
“However, the bigger picture issue at play is that the digital terrestrial television network that was supposed to replace analogue television is not going to be a feasible alternative for analogue television,” Norton said.
“In other words any rational or reasonable decision-making process in respect of setting a new date for analogue switch-off will need to consider what will be an overall appropriate and suitable approach to transitioning people that are reliant on analogue television to an appropriate alternative.”
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