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MultiChoice beats BOCRA in court

Publishing Date : 24 October, 2017


Botswana Communications Regulatory Authority (BOCRA) has lost a court case wherein it was seeking to quash an urgent application, brought to the High Court by MultiChoice Botswana.

BOCRA had demanded that MultiChoice submit its intended tariffs. MultiChoice Botswana shunned the responsibility arguing that the tariff design and bouquet crafting lies with MultiChoice Africa while the Botswana subsidiary is only the custodian of the formers contracts.
MultiChoice Botswana, the custodian of DStv pay television in the country had dragged BOCRA before the High Court to interdict a letter which would have forced it to submit revised tariffs by the 17th of September.

MultiChoice Botswana rushed to court to seek to suspend its obligations under BOCRA’s clause 13 of the subscription management service license. The licence deals with the tariffs charged on DStv subscribers and DStv’s packaging of bouquets. The legal challenge was also intended to block BOCRA from suspending Multichoice’s license should the latter not make the September 17th deadline. A legal hawk representing BOCRA, Virgil Vergeer of Collins Newman and Company argued that MultiChoice’s urgency in the application brought forward was self-created and speculative.

Vergeer argued before High Court judge, Justice Tshepho Motswagole that MultiChoice had failed to comply with the mandatory requirements needed to argue for an urgent application “They have failed to satisfactorily demonstrate that it is an urgent application,” Vergeer contended. Furthermore he argued that MultiChoice’s case was premised on fear that BOCRA might take an enforcement action which might result in them losing their broadcast licence, while in fact the rescission of an operating license is only considered as matter of last resort, when all the other options have been explored.

He further contended that, there is mechanism in terms of the BOCRA Act that MultiChoice be given an invite through a letter to submit its revised tariffs. Afterwards, he argued, it is only then that BOCRA is given a further 60 days to accept or counter the proposal before proceeding to give MultiChoice a response to indicate whether it is in agreement with the proposal or not. “It is not a given that if there is no compliance by the 17th the license should be revoked. It’s a matter of last resort. It’s a possibility, not a given,” Vergeer argued.

Vergeer wondered aloud why Multichoice had not taken the case to the courts much earlier because they had threatened court action on the 10th of August 2017. Furthermore, he noted that when BOCRA reiterated its stance, MultiChoice still didn’t take the legal route, arguing that it was incumbent upon MultiChoice to have approached the court timeously and promptly. Vergeer had also pleaded with the court to not come to the aid of the other party that has not clearly complied with the regulations of an urgent application. However, Advocate Stephen Vivian representing MultiChoice argued that while there was no certainty as to what BOCRA would do with its powers in the current case, they however could elect to use it to sanction the pay television service.

“We cannot in good conscience say that, ‘just impose a penalty on us’, we have to take action.” He further noted, “if we were to sit down and let them take action it can happen that when we come back they will say the urgency is self-created.We are being proactive-its urgent.” Said Vivian. He had further reiterated that MultiChoice Botswana does not design subscription bouquets and tariffs; a job he contended is executed by MultiChoice Africa.

That being the case, he noted that MultiChoice Botswana would hamstrung if asked to submit its tariffs because they want clause 13 of the license stricken off as they cannot be expected to submit under it while they only deal with contract management. Responding to the timing of the interdict Advocate Vivian said that theirs was a pre-emptive measure to ensure that they react the before the damage is done by BOCRA, through a possible sanction such as a rescission of an operating license. Vivia also prayed to the court that it interdict clause 13 as it gives MultiChoice Botswana the responsibility that actually lies with MultiChoice Africa stating that if they are wrong, they will deal with the argument at a later stage. The case is expected to be argued in full next month.



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