The Constitutional Court has ruled that South Africa may not switch off its analogue TV signals on 30 June 2022.

In a unanimous judgement in favour of E-tv in the latest battle over South Africa’s migration from analogue to digital TV, the Court declared the 30 June cut-off date irrational and unlawful.

Justice Nonkosi Mhlantla wrote in the judgement the communications minister Khumbudzo Ntshavheni had erred on several counts.

“The decision of the Minister of Communications and Digital Technologies not to give notice and take account of representations received on the analogue switch-off date is unlawful and is set aside,” the Constitutional Court ruled.

“The Minister’s decision to determine the deadline for registration of set-top boxes to be 31 October 2021, without considering the number of people who will be adversely affected by the analogue switch-off, tainted the process with irrationality.”

Households without a satellite service or TV capable of receiving digital terrestrial signals require a decoder-like set-top box (STB).

These STBs convert digital TV broadcasts into signals that older, analogue-capable televisions can display.

Indigent households qualify for a free STB. However, Ntshavheni had set a deadline of 31 October 2021 for needy families to register to receive their free boxes.

The Court held there was no sense of urgency on the steps taken before October 2021, and there was insufficient evidence on the actions taken by the Minister between February 2021 and October 2021 to notify the public of the urgent need to register for STBs.

“As the process was defective, the Minister did not have the necessary information before her regarding the number of persons who qualified and wished to register for state-sponsored STBs before the analogue switch-off date,” the Court stated.

Regarding determining the analogue switch-off date, Mhlantla found it was not procedurally rational for the Minister to set it without adequate notice to the industry and affected parties.

Ntshavheni should have sought the views of stakeholders on the matter.

“In the result, the Minister’s decision not to give notice and take account of the representations received on the analogue switch-off with the public or affected parties was found to be unlawful,” the Court held.

The Constitutional Court also stated that it was within the Minister’s executive powers to determine the analogue switch-off date and registration deadline for STBs.

However, it found the Minister had not exercised this power rationally and lawfully.

The Constitutional Court set aside the original order of the High Court in favour of Ntshavheni and replaced it with an order declaring the analogue switch-off date and the imposed deadline to register for STBs unconstitutional, invalid and set aside.

The Court further ordered the Minister to pay the applicants’ costs, including the costs of two counsel.

One of the benefits of migrating from analogue to digital terrestrial TV broadcasts is the “digital dividend”.

These are large chunks of radio frequencies that become available because digital TV is more spectrally efficient than its analogue ancestor.

The International Telecommunications Union earmarked these frequencies for use by mobile networks for 4G services.

Since the digital dividend is located in a relatively low-frequency band — much lower than South African networks have used in the past — it is well-suited for rural rollouts and indoor coverage.

This is because lower-frequency signals naturally propagate further, creating a larger coverage area per tower. They also penetrate walls better.

The Independent Communications Authority of South Africa (Icasa) included some of these frequencies in its March 2022 spectrum auction.

However, operators can’t use them until the analogue migration is complete.

Ntshavheni’s setback at the Constitutional Court impacts the availability of crucial cellular network capacity and not only terrestrial television broadcasts in South Africa.

CCT 89-22 and CCT 92-22 etv and Others v Minister of Communications and Others

constitutional court e.tv eMedia Headline Khumbudzo Ntshavheni Nonkosi Mhlantla

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