This is the finding of the Constitutional Court on Thursday.
The court upheld an appeal by M-Net‚ SABC and Muthambi against a Supreme Court of Appeal (SCA) judgment passed last year.
The 2016 judgment set aside an amendment to the digital migration policy made by Muthambi in 2015‚ which said that set top boxes supplied to poor households would not have capabilities to encrypt broadcast signals.
Encryption refers to the scrambling of the broadcast signal while it’s on its way to the customer’s TV set. The set top box would then unscramble the signal for transmission to the TV set.
Muthambi had previously said individual broadcasters may‚ at their own cost‚ make decisions regarding encryption of content.
The policy amendment by Muthambi was in line with the country’s planned move from analogue to digital terrestrial broadcasting
While some households will be able to receive digital broadcasting because their TV sets have technology to convert digital signals‚ millions of others do not have TV sets with that capability.
The boxes would enable those households without this technology to receive the impending‚ new digital television signal without having to throw their current television sets‚ which can only receive the old analogue signal.
These boxes will be required for a foreseeable future until television sets with the technology to receive digital signals are available to all.
e.tv was not happy with this policy as it wished to encrypt the signals that it transmits for a variety of reasons.
e.tv failed in its high court application to review and set aside Muthambi’s policy amendment.
However‚ on appeal‚ the Supreme Court of Appeal (SCA) set aside Muthambi’s amendment to the policy in June last year.
Electronic Media Network‚ the Minister of Communications and the SABC appealed against the SCA order.
In a majority judgment passed on Thursday‚ Chief Justice Mogoeng Mogoeng‚ supported by three justices‚ held that policy making was fundamentally a power assigned by the Constitution exclusively to the executive.
Mogoeng said the minister formulated a policy that allowed free-to-air broadcasters to encrypt their signals if they so wish‚ provided they bear the costs of doing so.
He said it fell within her wide discretionary policy-making powers.
“Ours is a constitutional democracy‚ not a judiciocracy‚” Mogoeng said.
He said although each arm of government enjoyed functional independence in the exercise of its powers‚ all three must caution themselves against intruding into the operational space of others‚ except where this was constitutionally permissible.
Mogoeng said one of the executive’s core features of its authority was national policy development.
He said permissible judicial intervention was quite distinct from the judiciary’s imposition of its preferred approach to the issues where other arms of government were best placed to handle.
In a minority judgment‚ Justices Edwin Cameron and Johan Froneman‚ supported by two justices‚ said Muthambi’s amendment was not immunised from judicial scrutiny.
They said the amendment by Muthambi was unlawfully issued and in breach of the minister’s statutory obligations.