SCA rules Eskom is not an organ of state; ICASA finalises DTTB spectrum regulations

ICASA has published final Digital Terrestrial Television Broadcasting Regulations under the Electronic Communications Act, allocating capacity across seven multiplexes in the 470–694 MHz band to public, commercial free-to-air, community, and subscription broadcasters including SABC, e.tv, and named community stations. The Regulations prescribe channel authorisation procedures (applications required before commencing digital broadcasting, with ICASA to decide within 60 days), signal distribution arrangements via ECNS licensees, and multiplex operator responsibilities. A 36-month use-it-or-lose-it rule forfeits unutilised capacity, and penalties of up to R500,000 per day apply for contraventions of the channel authorisation and electronic programme guide obligations. Signal distribution agreements must be submitted to ICASA within six months of commencement. The 2012 Digital Migration Regulations and 2014 Diversity Regulations will be repealed only upon a gazette notice confirming the end of dual illumination. Commencement is deferred to a future date to be gazetted, and different provisions may commence on different dates.

Landowners sued Eskom for fire damage caused by its infrastructure. Eskom raised a special plea that the claims were time-barred because the plaintiffs had not served the six-month statutory notice required by section 3 of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, contending that Eskom qualified as an organ of state under the Act.

The court held: The SCA held that Eskom is not an organ of state under the Act. Section 1(1) creates a closed list narrower than the constitutional definition: section 1(1)(c) requires functions performed directly 'in terms of the Constitution' (not merely under legislation), and Eskom is not referred to in the Constitution nor does it perform constitutional functions. Section 1(1)(g) also does not apply because the Eskom Debt Relief Act does not assign responsibility for Eskom's debt to National Treasury — it merely provides a loan framework. The court expressly held that Pegma was wrongly decided and should not be followed. The appeal was dismissed with costs.

Legal impact: This judgment removes the section 3 notice requirement as a procedural barrier for all damages claims against Eskom. It establishes that the Act operates as a closed list: if an entity such as a state-owned company is not explicitly named or described in paragraphs (a) to (g), the Act does not apply, even if the entity is an organ of state for other constitutional purposes. The court applied the principle that legislation restricting the right of access to court must be construed narrowly. The reasoning extends by implication to other SOEs like Transnet that are similarly not listed in the Act. Practitioners can no longer rely on or be caught by the Pegma line of authority.