In a landmark judgement in a pivotal test case for not just South Africa's TV industry and broadcasters but with far reaching consequences for pan-African television viewership, the South Gauteng High Court in Johannesburg yesterday - in a case brought by eBotswana - ruled that Sentech is indeed negligent of protecting the broadcaster and is guilty of not preventing and curbing access to TV signals originating from South Africa.
The high court has ordered South Africa's parastatal signal distributor to immediately take all steps necessary to stop piracy viewing of SABC1, SABC2 and SABC3 outside of South Africa (which is taking place in several countries but specifically inside Botswana).
The high court ruled that Sentech is ''liable in delict for its failure to take all reasonable steps necessary to prevent pirate viewing in Botswana of SABC1, SABC2 and SABC3'' which the ruling says is ''wrongful, negligent and in breach'' of what Sentech is supposed to be doing.
What has been happening is that eBotswana - a sister company to South Africa's e.tv - has been complaining that viewers outside of South Africa get free access to SABC1, SABC2 and SABC3 in other countries outside of South Africa because Sentech is not blocking or encrypting the channels on Vivid TV decoders as it should be doing.
Despite repeated requests by e.tv and eBotswana that Sentech resolve the problem, Sentech did nothing.
Therefore eBotswana as a specific business - a claim now endorsed by the court - said that it was suffering lower viewership (leading to a loss of advertising income). In broader terms Botswana's TV industry, the local production and advertising industries are also suffering.
eBotswana said last year that it estimated that 70% of Botswana's population is watching pirated SABC channels. Despite numerous requests by e.tv and eBotswana, Sentech failed to act to actually upgrade its Vivid platform and enforce encryption as it should have been doing a long time ago.
The South Gauteng High Court, in its judgement gave Sentech 3 months to cut off SABC1, SABC2 and SABC3's signals to Botswana through enacting encryption. Sentech can apply for an possible extension. eBotswana can now file a damages claim for loss of income against Sentech and has 20 days to do so.
Sentech has also been ordered to pay eBotswana's legal costs. Vasili Vass, e.tv's group head of corporate affairs, tells me eBotswana is ''considering the order'' handed down early yesterday morning.
