BY MPHO KELEBOGE
Court of Appeal judges have slammed the Botswana Communication and Regulatory Authority (BOCRA) management for failure to control and regulate MultiChoice Botswana to conduct a conducive environment for Batswana.
The court appeal then ruled in favour of MultiChoice Botswana and ordered BOCRA to pay the cost of the lawsuit.
MultiChoice Botswana took the matter to court challenging the decision by BOCRA to impose Tariff regulations (subscription fees) over
Arising from the conditions embodied in clause 13 of BOCRA, MultiChoice Botswana then brought an application in the High Court and ultimately sorts a relief declaring that the subscription fees and rates should not be regulated by BOCRA through clause 13.
According to papers before court, it is common cause that clause 13.1, 13.2 and 13.4 relates to the tariffs of subscriptions fees levied for the DStv services while clause 13.3 is aimed at programme content more particularly the bouquet composition of the service.
Three Court of Appeal Judges led by Justice Brand said a more equitable solution seems to lie in allowing MultiChoice Botswana to continue with its business while BOCRA continues with its search for the unlikely solution.
The judges said it is highly unlikely that BOCRA will ever be able to find a lawful way to achieve its goals and there seems to be no good reasons to prevent MultiChoice Botswana from conducting its business and providing its useful service.
That would in effect be setting the licence aside, with the sole purpose of enabling BOCRA to find an answer to its problems which are unlikely to be found.
“In so far as its seeks to control the activities of a third party, MultiChoice Africa though imposing conditions on the licensee, MultiChoice Botswana, its purpose and motive will always constitute an ulterior motive which would render the conditions thus imposed unlawful,” said the judges
The judges further said, BOCRA is shooting itself in the foot, because it accepted that since MultiChoice Africa is a company registered in Mauritius, unless it voluntary complies with the legislative framework in Botswana, it is difficult for it to compel it to do so.
The judges said BOCRA is advised that it does have various mechanisms available to prevent the DSTV service from being provided in Botswana but it would rather on a co-operative basis ensure that DStv service is provided legally in Botswana.
According to court papers BOCRA would be willing on the basis of MultiChoice Botswana complying with the terms of the license, to authorise the DStv service to Botswana but it is understood that this will require the cooperation of MultiChoice Africa. BOCRA cannot see why this cannot be achieved.
Justice Brand said there is nothing in the language of section 32(2) to suggest that BOCRA may impose conditions on licensees that are wholly unrelated to the conduct authorized by the licence purely to control the conduct of a third party.
