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Since September 2017, it has always been clear what the two big elephants in the room are tussling over. The court papers show that at the centre of controversy is Section 90 of the BOCRA Act which requires all licensed service providers to submit their intended tariffs to the regulator for approval. At the same time, the dispute has also been fuelled by Clause 13 of the licence BOCRA granted to MCB which allows it to operate as a subscription service manager in Botswana.
When the case was first argued in court in September 2017, Collins and Newman Attorney, Virgil Verger who appeared on behalf of BOCRA said that as a licensed service provider, MCB is bound by the terms of its license as well as the BOCRA Act which requires them to submit the tariffs.
MCB on the other hand, as represented by Advocate Stephen Vivian argued that its role is to provide subscription management services for subscribers of MultiChoice Africa in Botswana. MCB further argued that it does not have control or input on content channels which include DSTV services and as such does not provide a broadcast service to the local market.
By April 2018, the regulator indicated that it was ready to pull the plug on MCB. BOCRA said at the time that MCB would be operating illegally in Botswana since it cannot comply with clause 4.1 of its Licence. Replying, MCB lawyers said that the licence BOCRA issued is explicitly a “Subscription Management Service Provider Licence “which licence MultiChoice Botswana, not to broadcast, but to provide a subscription management service.”
It remained the view of MCB by April 2018 that the difference between the parties relates to the kinds of conditions BOCRA may impose on such a licensee.
MCB said at the time that the regulator derives its power to impose conditions on licensees from section 32(2) of the Act. The section states that ä licences issued under subsection (1) may be issued subject to such conditions and restrictions, including geographically restrictions, as the Board may consider necessary and such conditions and restrictions shall be endorsees on the licence.”
“We submit that the language of this provision is clear. BOCRA may impose conditions and restrictions on a licensee in relation to its own performance of the activities for which the licence is required. It may set conditions for the performance of those activities and may impose restrictions on them. But there is nothing in the language of the section to suggest that BOCRA may impose “conditions” on a licensee, which are unrelated to its own conduct, purely to regulate the conduct of a third party,” MultiChoice Botswana stated in the court papers.
MultiChoice Botswana also contended that “however BOCRA included clause 13 in MultiChoice Botswana’s licence with the avowed purpose of regulating Multi Choice Africa’s tariffs. That was an impermissible anterior purpose.”
BOCRA GETS THE TEETH BACK...
Fast forward to August 2018, a judgement delivered by Justice Tshepo Motswagole has separated a boy from the man.
“The application is dismissed and the interdict issued on 20 October 2017 is hereby discharged”, reads the last part of the 157 pages long judgment delivered by Justice Motswagole on Friday.
In 2007, which was the last time the two parties clashed, the matter went all the way to the Court of Appeal. It was not, however yet clear by Friday whether MCB will appeal the judgment. MCB General Manager, Theo Erasmus said on Friday that, “MultiChoice Botswana has noted the ruling of the High Court of Botswana and will study the judgement”. In 2007, the company won the acrimonious battle against the then regulator – National Broadcasting Board.
While the market awaits MCB’s decision on whether to appeal or not, consumers also remain eager to know whether the company will fall the path taken by dinosaurs or will comply with both Clause 13 of its license and Section 90 of the BOCRA Act.
[What the judgement means: MultiChoice will now be forced to submit its tariffs for vetting by BOCRA]