The Judgement itself depicted BOCRA as an organisation which wants to apply a one-size fits all approach to all its regulated entities despite their diferent classificaion - a matter that stands to scare service providers from making it easy for consumers to receive services.
It equally helped to show that lots of institutions in the country do not challenge the Regulator in terms of seeking interpretations of the regulations and the Act. The institutions seem to believe that the Regulator is always right and what MultiChoice has done twice is in the best interest of the industry because it has provided an opportunity for the courts to interpret the regulations.This is a good thing not only for MultiChoice but also for the industry. An example is that about four companies were invited to come and receive their respective licences, but MultiChoice refused while Starset Botswana, Kwese and others simply received their licences with the same controversial clause, but never bothered to question BOCRA.
These companies were happy to be licensed but had not scrutinised the conditions of the licence whether they are practical or not.At the centre of the controversy of the marathon trial is Clause 13 of Section 90 of the licence which calls for MultiChoice Botswana to submit to BOCRA in writing a proposal, in respect to subscription fees it intends to apply. MultiChoice refused to take the licence arguing that they can only do so after Clause13 has been scrapped off as they are a Subscriptions Management Service (SMS) company and not a Broadcaster.
The case was a repeat of the first one that took place in 2005 under the National Broadcasting Board (NBB) where MultiChoice Botswana advanced the same arguments. During the trial that started in April 2013 it became evidently clear that all BOCRA did was to insert the failed clause on the new Act stating that they are including SMS companies but without going deeper into understanding the relationship between a subscriptions management company and a broadcaster.
This is despite that different industry players are classified or structured differently, but the ruling has now put to bed once and for all the fact that an SMS company is not a broadcaster. The ruling was made in 2005 by Justice Walia; it was upheld by the Court of Appeal.
The ruling states that if BOCRA’s intention is to regulate a foreign broadcaster in Botswana, then they will have to find a way of regulating that foreign broadcaster instead of finding an elusive way, as Justice Brand put it. This surely is a big challenge, but what is not disputable based on the judgement is that BOCRA cannot regulate broadcasters by proxy. More concern during the trial was that some of the companies such as Starset are completely independent of the broadcaster, they do not even have a relationship as they are simply agents but are given licences that allows them to pay tariffs .
Justice Motswagole’s judgement was focusing on the relationship between SMS Company and the Broadcaster that they share a common relationship.The question that arose is what if the agent does not have a common shareholder with the broadcaster? The judgment answers this when it shows unequivocally that MultiChoice Botswana is simply an SMS provider and therefore the regulator cannot impose conditions on an SMS provider and at the same time on the broadcaster.
In terms of the high court judgement, companies such as CineMedia who are agents for Netflix were going to be regulated according to what Netflix is charging in Botswana through CineMedia. It is clear that BOCRA was derailed by the fact that MultiChoice Botswana and MultiChoice Africa are sister companies who share common shareholders.
Court of Appeal
In his order Justice Brand who appeared with Justice Walia and Justice Zibani Makhwade set aside the high court order and replaced it with an order reviewing and setting aside Clause 13 of MultiChoice Botswana’s licence, dismissed BOCRA’s counter application and directed them to pay costs of the High Court proceedings, including costs of the two counsels. Justice Brand stated that MultiChoice Botswana’s challenge to the validity of Clause 13 essentially rests on two grounds - firstly that, although BOCRA is authorised in terms of Section 32 (2) of the Act to issue a licence subject to such conditions as it deems necessary, those conditions must pertain to and be appropriate to the conduct and activities actually undertaken by the licensee itself.
MultiChoice Botswana’s licenced activities do not form part of the actual broadcasting activities which are taken by MultiChoice Africa, consequently, MultiChoice Botswana cannot be bound to conditions that pertain to actual broadcasting in which it performs. Justice Brand stated it somewhat differently, that BOCRA is not allowed to regulate the activities of MultiChoice Africa by proxy through imposing conditions on the license of MultiChoice Botswana as it was proposed to do. Brand further confirmed that MultiChoice Botswana has no control and input with regard to tariff rates charged to subscribers nor the content of the programming or composition of the packages or bouquets of channels presented to the subscribers, and therefore cannot comply with section 13, and that BOCRA is not allowed to impose conditions which are impossible in a licence.
Speaking to BG News on what their next step is BOCRA’s Communication Manager, Aaron Nyelesi said that their legal team was constrained to respond to media questions before the Board is briefed on what the case means and what could be the way forward.
“Despite this, the court has held that the licence is still valid without clause 13. Basically MultiChoice should be regulated as an SMS provider. The court views clause 13 as BOCRA’s way of imposing conditions on MultiChoice Africa through MultiChoice Botswana, which is in the opinion of the court, wrong. However, note that they advise against us being quoted before the executive structure has been briefed to advise on the way forward”.
Multichoice Botswana promises to continue giving the locals best services and make sure that their clients are at par with the world’s happenings.
Speaking at the Media appreciation party recently, Multichoice Managing Direcctor, Katlego Arnone said that they aim at improving what they offer on a daily basis. She shared this with members of the media as they treated them to an appreciation party. Arnone said that the media has always been their watchdog in sensitizing people about their services; hence they had to thank them through the relaxed chilled night session that took place at Lulu’s Garden.
She noted that next year they would have an additional content on their services as a way of showing commitment to their clients. They would have Date My Family Botswana amongst their programs, she says. On the other hand, they have the ‘Re a leboga’ initiative, which is a funeral cover program aimed at giving their clients an esteemed funeral package, as an appreciation for choosing them.
MultiChoice Botswana has also sponsored two promising local young filmmakers at the Zambia-based academy, namely Serena Serene Mmifinyana and Nikita Mokgware, who demonstrated not only the correct industry qualifications and skills, but also the passion needed to narrate Africa’s unique stories.
Part of the company’s focus on growing the local film and TV industry includes providing relevant platforms on which to showcase local content. This was augmented significantly in 2018 with the launch of Maru TV on DStv. A free-to-air general entertainment channel with a 60% local content promise, Maru TV is available across all DStv packages, broadcasting general entertainment, local news, religious programmes, kiddies’ content, and finance, economic and business programming.
MultiChoice Botswana maintained its focus on local content right until the end of the year, with an exciting media showcase held on 1 November 2018. Providing a front-row experience to all the brand new content that would soon debut on the DStv platform, the content showcase was hosted by MultiChoice Botswana MD, Katlego Arnone, and gave media an opportunity to learn about the African content the broadcaster has planned for the next six months.
The showcase also gave local content producers an opportunity to understand the requirements and processes involved in submitting content onto DStv to ensure greater success in their submission efforts in the future. This is a vital part of supporting emerging filmmakers and helping them grow their careers.
MultiChoice Botswana (MCB) has won temporary amnesty in an urgent court application to interdict Botswana Communications Regulatory Authority (BOCRA) from implementing its enforcement guidelines against them.
At the centre of controversy is Section 90 of the Botswana Communication Regulatory Authority Act which requires all the licensed service providers to submit their intended tariffs to BOCRA for approval.
MCB argues 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.MCB brought the matter before High Court Judge Tshepho Motswagole on an urgent basis on Wednesday morning where seasoned attorneys were lined up.
Attorney Virgil Vergeer of Collins Newman and Company assisted by Keamogetswe Sefakwe appeared for BOCRA. MCB was represented by Advocate Stephen Vivian appearing with instructing Attorney Sipho Ziga of Armstrongs Attorneys. The two were accompanied by Attorneys Wendy Rosenberg and Samantha Sinden of Werksmans in South Africa.
BOCRA’s argument is that as a licensed service provider, MCB is bound by the terms of the license and the Act which require them to submit the tariffs for approval. At Wednesday’s hearing the court only dealt with the issue of urgency which was decided in favour of MCB meaning the hearing of the application will be expedited with argument set for 20th October 2017.
BOCRA attorney argued that MCB failed to demonstrate that the matter is urgent as they have known about the terms of the licence since 29 June 2017, but did nothing to challenge it in court.
While MCB attorney, Advocate Vivian argued that the matter was urgent because BOCRA had since given them up to 17 October 2017 to have complied failing which BOCRA would implement its enforcement guideline.BOCRA is required to have filed its affidavit on September 29, 2017 while MCB will file its own on October 10, with heads of arguments set for filing on October 17.
Should the court grant the interdict MCB will then pursue its review application against the decision of BOCRA relating to the implementation of license conditions, alternatively the conditions as required by section 90 of the Communication Regulatory Act. Court records show that both parties have been exchanging letters but never got to agree with each other as BOCRA wanted MCB to comply with the license in its entirety notwithstanding that MCB has instructed its attorneys of record to institute court proceedings applying for declaratory relief as to proper interpretation of Clause 13 of the licence, and to the extent necessary, to review and set aside the Authority’s decision to include terms in the licence.
MCB argues that they cannot comply with this clause because their role is to provide subscription management services for subscribers to the DStv service Botswana. These services include subscription fee collection, marketing and sales, technical and installation support and the operation of a national call centre.MCB does not provide a broadcast service, and does not have any control or input over the content channels which are included in DStv service.What prompted MCB to act was a letter dated 5th September written by BOCRA to MCB’s then general manager Billy Sekgororoane informing the latter of BOCRA’s mandate to carry out tariff regulations in terms of Section 90.
MCB wrote back through their attorneys on 29 August requesting BOCRA to provide them with a written undertaking not to take steps against compliance of clause 13 of the MCB licence. But, BOCRA could not budge maintaining that their position as indicated in their letter of 18 August 2016 stands.