The SCA allowed the appeal and overturned the judgment of Prinsloo J in the High Court.  A clause of the Digital Migration Policy was declared to be unlawful and invalid and accordingly set aside. The judgment deals with issues of consultation, statutory interpretation, publication, principle of legality, value of fairness, mandates, irrationality, ultra vires, decision-making powers and PAJA. (Pty) Ltd v Minister of Communications (1039/2015) [2016] ZASCA 85 (31 May 2016) per Lewis JA (Saldulker, Swain and Mbha JJA and Baartman AJA  concurring).

SCA summary

Legality: an amendment by the Minister of Communications of the Digital Broadcasting Migration Policy in 2015 that did not follow a process of consultation was irrational and in breach of the principle of legality: amendment did not achieve its purpose and was thus irrational and invalid on that basis too: the Minister purported to bind regulatory authorities and broadcasters and thus acted ultra vires: amendment reviewed and set aside. 


[61] relies for its argument that the amendment is ultra vires on Minister of Education v Harris [2001] ZACC 25; 2001 (4) SA 1297 (CC).  That matter concerned a challenge to a policy enacted in terms of the National Education Policy Act 27 of 1996.  The policy purported to determine the age at which children could first attend an independent school.  Harris challenged the validity of the policy on the ground that the Minister did not have decision-making powers in terms of that Act.  The Constitutional Court held that the Act did not confer on the Minister the power to make decisions.

[62]      The policy stated that it gave notice of the ‘age requirements for the admission of learners to an independent school or different grades at such a school’.  It continued: ‘A learner must be admitted to grade 1 if he or she turns seven in the course of’ a calendar year.  ‘A learner who is younger than this age may not be admitted to grade 1.  .  .  .’

[63]      Sachs J said (para 11):

‘Policy made by the Minister in terms of the National Policy Act does not create obligations of law that bind provinces, or for that matter parents or independent schools.  .  .  .  There is nothing in the Act which suggests that the power to determine policy in this regard confers a power to impose binding obligations.  In the light of the division of powers contemplated by the Constitution and the relationship between the Schools Act  [The South African Schools Act 84 of 1996] and the National Policy Act, the Minister’s powers under section 3(4) are limited to making a policy determination and he has no power to issue an edict enforceable against schools and learners.  Yet the manifest purpose of the notice is to do just that.’

[64]      M-Net seeks to distinguish Harris on the basis of

  • the peremptory language in the notice;
  • the objective of the notice, which was to achieve uniformity between independent and state schools by extending a rule in the Schools Act to independent schools and
  • the fact that the Minister did not dispute that he purported to bind independent schools.

[65]      The SABC argues that ICASA, like the authorities regulating schools, must consider policies but does not have to follow them.  The policy, it argues, does not fetter ICASA.  Nothing in the policy prevents ICASA from making a decision that the subsidized ST boxes would have encryption capability.

[66]      In my view, Minister Muthambi has issued an edict.  She has decreed that the subsidized ST boxes shall not have encryption capability.  USAASA has said nothing on this score.  It cannot make a financial decision that is not consonant with the policy.  The Minister’s decision does purport to bind.  And that is borne out by the statements in the answering affidavit that say that government will not bear the costs of encryption and that if wishes to broadcast an encrypted signal it must provide the ST boxes to consumers at its cost.  That, as has already been said, makes it commercially impossible for to encrypt its broadcast signals despite the statement in clause 5.1.2(C) that it is free to do so.

[67]      In my view Minister Muthambi did purport to issue a binding direction, which she was not entitled or empowered to do.  For this reason too the encryption amendment is invalid.  The court a quo thus incorrectly found that the amendment was not ultra vires.  The appeal must succeed on this ground as well.