MMA and SOS are in court this Friday to appeal that the ASO postponement case be granted direct to the Constitutional Court

Media Monitoring Africa (MMA) and SOS Support Public Broadcasting Coalition will be in the Constitutional Court on Friday the 20thof May 2022. MMA and SOS have applied for direct access to the Constitutional Court in a matter involving the Department of Communications and Digital Technologies (DCDT)’s decision to switch off the analogue signal. We will argue that should the Analogue Switch Off (ASO) go ahead, the rights of the most marginalized South Africans will be violated as millions will be left without access to television.

SOS and MMA believe that the right to freedom of expression enshrined in the constitution will clearly be violated should the ASO go ahead as planned. The South African Constitution in the Bill of Rights, section 16(1) states that everyone has a right to freedom of expression, which includes “freedom to receive or impart information or ideas”. Following our previous court submissions, it is undisputed that millions will be left in the dark, should the migration process proceed, which will be a violation of their basic human right. Freedom of expression is an integral part of our democracy and a constitutional right inherited by every citizen and without it, citizens are not able to make informed decisions pertaining to political, economic or social factors, and are subsequently prohibited from excising their democratic rights.

Currently, 5.7 million (36% of the television audience) South Africans, cannot self-migrate due to their socio-economic status (These figures are from the Broadcast Research Council and were presented by MMA and SOS in court, they were not challenged or disputed by any party). The government has on various occasions, publicly committed itself to help those incapable of self-migration, it identified households earning less that R3500 as indigent, qualifying for a free Set Top Box (STB). The Minister has stated that out of the 3.7 million households that qualify for the subsidy only 1.2 million have registered, meaning that approximately 2.5 million South African households eligible for the subsidy have not registered and they will experience the interminable broadcast loadshedding upon the ASO.

To make matters worse, it seems nearly impossible that the DCDT will be able to ensure that even the 1.2million registered households will have their set top boxes installed and working by the end of June. Depriving the poor of their right to access information is unconstitutional and unacceptable, and all the more egregious given that it will deepen the digital divide. As key proponents of freedom of expression and equality, it is essential that we seek to bridge the digital divide and reduce inequality, not deepen it – which the ASO, if it goes ahead on the irrational timeline presented will undeniably achieve.

To be clear, both MMA and SOS support the shift to digital and that is why we have repeatedly called for access to the internet as a right to be realized. There is therefore no debate about the need to move to digital but we cannot tolerate a decision by government that would seek to leave millions behind facing interminable tv loadshedding.

Moreover, apart from the 2.5 million, there are hundreds of thousands of households whose income exceeds R3 500 yet they are still incapable of self-migration. There can be no doubt that the ASO migration undermines and degrades the poor, it marginalizes them further and it will be detrimental to the democratic values entrenched in the constitution.

In terms of Section 7(2) of the constitution, the minister is obligated to respect, protect, promote and fulfil the rights in the Bill of Rights. In regard to respect, this obligation prohibits all organs of state from interfering with or violating any constitutional right. The Minister’s plan of action to proceed with the ASO at the expense of the impoverished also violates the constitutional rights of the citizens of this country and blatantly undermines the constitution. Our plea is that the Minister puts on hold the ASO until appropriate implementation strategies which are cognizant of the poor and the dynamics of the sector are put in place.

To date, no reasons have been put forward for the date selected by the DCDT. Of course, part of the reason for the urgency is that the digital spectrum has already been auctioned off by the Independent Communications Authority of South Africa (ICASA) to 6 bidders including Vodacom and MTN, collecting a revenue of R14,4 billion. The mobile operators’ frustration with ICASA and the DCDT is understandable. The obvious question is why didn’t the DCDT start implementing the plans for ASO 3 years ago with the kind of vigour and urgency they are displaying now?

We reiterate our call to the Minister to delay the ASO until the 3.7 million indigent households (registered and unregistered) have their STB’s installed and working. We also reiterate our call for the roll out to be evaluated and monitored, with systems in place to ensure progress and accountability. The Minister must also make efforts to understand the plight of the underprivileged and the media sector.

We are hopeful that the Constitutional Court will grant the litigants direct access as we strongly believe that the constitution is being undermined and the rights of South Africans are being violated.

Digital migration is a process of moving (migrating) from the use of analogue forms of broadcasting to digital ones which will cease all analogue television broadcasting. The process of digital migration in South Africa started approximately 16 years ago, in 2006. The aim was to complete it by 2011 but the process has suffered many setbacks and the government missed that first target for completion and the second target of June 2015. For 5 years (from 2015), the government was completely silent about the ASO date until year 2021 when the Minister gazetted the 31st of March 2022 as ‘the’ date. The ASO date was pushed to 30 June 2022 by the High Court (which also instructed the Minister to install 507 000 STB’s before the stated deadline) in a case where MMA and SOS requested postponement of the ASO date until all mandatory installations have been completeds, to prevent the poor from being cut off from public service content.