Analogue Switch-Off Unconstitutional

Analogue Switch-Off Unconstitutional

Media Monitoring Africa (MMA) and the SOS Support Public Broadcasting Coalition (SOS) welcome the judgement by the Constitutional Court that the implementation of the process to switch off the analogue signal by the Minister of Communication and Digital Technologies, Khumbudzo Ntshavheni is deemed to be tainted with irrationality and therefore unconstitutional, invalid, and set aside. The court undertook to safeguard the wellbeing of the millions of people who otherwise would have been plunged into darkness and deprived of the basic right to freedom of expression and that of access to information. This is due to the Minister’s decision not to give adequate notice, and failure to engage in a public consultation process with the affected parties and the media sector.

The ruling of the constitutional court is in accordance with MMA and SOS’s argument that the registration process to secure a set top box (STB) was defective with no robust public communication, which goes against the objective of allowing the indigent households to duly register. The court also acknowledged that the indigent who registered after the 31 October 2021 deadline would experience television blackout for 3-6 months after the analogue switch off. Moreover, the court had it that the initial Analogue Switch Off (ASO) date of 31 March 2022, set by the Minster is not justified and thus unlawful. As such, by default, 30 June 2022 deadline falls on the wayside.

The judgment states that leave to appeal directly to the Constitutional Court on an urgent basis is granted and the appeal is upheld. The High Court ruling is set aside, and this court has ordered that the ASO date and the end of dual illumination pronounced by the Minister in terms of the Broadcasting Digital Migration Policy (as amended) is unconstitutional, invalid and is set aside. The same applies to the Minister’s decision to impose the 31 October 2021 deadline for the indigent to register for free set-top boxes.

The judgement is welcomed as a win for democracy. It is a win for people who otherwise would have lost critical means of access to information. However, the goal is to complete the process of digital migration effectively, efficiently, and with ensuring that those who still rely on analogue signal to access information, to be migrated to digital without any interruption of receiving a signal. This judgement gives government an opportunity to ensure that a fair and complete process unfolds, and that no communities are excluded from the migration process.

MMA and SOS will be paying close attention to the renewed process, and we call on the Minister to ensure that adequate, meaningful public consultation is held and the process of a just and fair digital migration, finally realised.