Gaborone high court Judge, Tshepo Motswagole has reserved judgement to August 3, 2018 in the case in which MultiChoice Botswana (MCB) is suing Botswana Communications Regulatory Authority (BOCRA) from implementing its enforcement guidelines against them.
At the centre of controversy is Section 90 of the BOCRA Act which requires all the licensed service providers to submit their intended tariffs to BOCRA for approval. MCB first brought the matter to court last October on urgent application to interdict BOCRA from implementing its enforcement guidelines against them until the matter has been heard and the court has pronounced its final judgement. MCB argued that it is impossible for them to provide such tariffs because they do not provide such services, instead such services are provided by MultiChoice Africa. The current dispute started last year when BOCRA granted MCB a Subscription Management Services licence which included Clause 13, which requires MultiChoice Botswana to amongst other things, submit to BOCRA in writing, a proposal in respect of subscription fees it intends to apply.
MCB argues that clause 13 is unlawful as it is BOCRA’s attempt to regulate a foreign company which owns the DStv service through MCB. DStv is owned by MultiChoice Africa.
This is not the first time the two square up in court. The last time MultiChoice Botswana and BOCRA’s predecessor, National Broadcasting Board (NBB) had a go at each other in court was in 2007. The dispute went all the way to the Court of Appeal and culminated in the repeal of the Broadcasting Act only to be replaced by the Communications Regulatory Authority Act, in an attempt to regulate players such as MultiChoice, which at the time was the only player in that arena.
Once again the current dispute essentially revolves around the extent to which BOCRA can impose certain licensing conditions on MCB. The latter is represented by Advocate Wim Trengove SC with junior Counsel Isabel Goodman through local lawyer Sipho Ziga of Armstrongs Attorneys.
BOCRA have brought Advocate Adrian Botha SC with Tsholofelo Mvungama of Collins Newman & Company. When asked by a judge Motswagole whether MCB can provide support services to a company which is not licensed to broadcast in Botswana, Adv.Trengove said MultiChoice Africa does not need to register with BOCRA because the Communications Regulatory Authority Act operates within the borders of Botswana.
Advocate Botha SC then took judge Motswagole through the role of BOCRA which he said includes but not limited to, section 6(2) of the current Act, which is to “protect and promote the interests of consumers, purchasers and other users of the devices in the regulated sectors, particularly in respect of the prices charged for, and the availability, quality and variety of services and products, and where appropriate the variety of services and products offered throughout Botswana...”
Botha who reminded judge Motswagole that MultiChoice Africa is avoiding regulation because, of its own volition and under oath, MCA’s position is that it cannot submit to BOCRA’s regulatory jurisdiction and risk other African regulators following suit. If MC Africa is forced to submit to regulation in Botswana, it may have to evaluate its relationship with MCB or the provision of the DStv service to subscribers in Botswana, in order to preserve its commercial viability.
It would appear that this case is very important to BOCRA and how it sinks its teeth with all players, including the new Kwese TV, regarding how they conduct themselves in the market place. It is definitely a public interest case. The judgment was reserved to 3 August 2018 at 0900am.