STBs policy not an exercise of public power – Trengove

The policy decision made by Communications Minister Faith Muthambi in 2015 on the encryption capability of government-supplied set top boxes (STBs) for digital migration is not reviewable by a court. This, notes a TimesLIVE report, is the gist of the submission made by Muthambi’s counsel Wim Trengove SC before the Constitutional Court yesterday. Muthambi's counsel‚ together with those of the SABC and Electronic Media Network‚ was seeking to set aside the SCA’s judgment last year, which found her Digital Broadcasting Migration Policy in favour of unencrypted STBs was irrational and in breach of the principle of legality as there was no process of consultation. Trengove argued 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. ‘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 added. Steven Budlender SC, representing e.tv‚ said the broadcaster had always maintained its support for encryption, notes a Business Day report. Muthambi’s amendment meant any broadcaster that wanted to broadcast encrypted signals should bear the costs of supplying 5m boxes at its cost. The broadcaster took issue with this policy. Judgment was reserved.