Botswana Communications Regulatory Authority (BOCRA) has a case in which Multichoice Botswana was suing it for its decision to implement its enforcement guidelines against the latter which among others require that it submit its intended tariffs to BOCRA for approval.
The implication of this therefore is that Multichoice will have to do as BOCRA requires, that is if they decide not to take up the matter with the highest Court in the Land, The Court of Appeal. Justice Tshepo Motswagole on Friday ruled that BOCRA may go ahead with its decision and in turn gave Multichoice six weeks to appeal the decision.
Although Multichoice’s case was essentially based on the argument that BOCRA cannot impose certain licensing conditions on the former e.g. that it is impossible for them to provide such tariffs as required by BOCRA because they do not provide such services, instead such services are provided by Multichoice Africa (MCA), the Judge differed with the argument.
“What happens between closely associated legal entities is like what happens in private between marital spouses and only the participants know the truth. However it is the outward public manifestation of the relationship between the associated legal entities that the law targets such that the very services that are rendered by the applicant, the subscription management service is by operation of the law declared to be a broadcasting service and accordingly requiring a broadcasting license issued pursuant to section 31 (1) to be carried out lawfully in Botswana. By seeking to be so licensed, the provider of the regulated broadcasting service undertakes or is obliged to comply with the regulatory rules and policies for and on behalf of the collective,” Motswagole stated in his judgment.
Multichoice Botswana had argued that is impossible for them to provide such tariffs because they do not provide such services, instead such services are provided by Multichoice Africa (MCA) and that the license BOCRA issued is explicitly a “Subscription Management Service Provider License” which license allows Multichoice Botswana, not to broadcast, but to provide a subscription management service.
“In my humble view to read the Act any other way so as to afford the provider of a subscription management service escape route would be to render the Act not only ineffective but to defeat its very purpose of achieving an equitable and uniform regulation of the broadcasting service in Botswana,” said Justice Motswagole.
According to Motswagole, the regulatory regime is not intended to be discriminatory but to bring about a fair and balanced provision of services in such manner that it is both reasonably accessible to the public in Botswana and profitable to the service providers wherever they may be situated. The opposing view, he said, seeks to defeat this noble idea in favour of advantaging that part of broadcasters who are situated beyond the borders of Botswana by extending to them free access to the Botswana market without corresponding obligations not to harm the public and without corresponding obligations not to harm the public and/ or not to overreach them whilst afforded a free hand to make super profits at minimum costs here in Botswana. The resultant outcome, he stated, will be that the domestic broadcasting industry would have to bear the burdens of regulation alone and in turn become unprofitable.
“The further negative effect of such interpretation is to undermine the facilitation of the growth of the domestic broadcasting industry as well as to discourage the growth of investment, technological development and the creation of job opportunities here,” he said.
Justice Motswagole further noted that the Botswana Regulatory regime seeks to regulate the broadcasting activity that impacts the public in Botswana and the domestic economy. The ultimate test, he argued, is whether one or more of the broadcasting activities take place or has effect here in Botswana and that it matters not where the other broadcasting activities take place beyond the jurisdiction.
“In this sense therefore any evasive action on the part of some of the actors would be settled at the point where they have effect,” said Motswagole.
Speaking to the question of whether it is within the power of the regulatory authority to demand compliance with section 90 (2) of CAP 72:03, Motswagole stated that in terms of the foregoing provision a service provider or product supplier within the controlled sector such as subscription management service, which is deemed to be a broadcasting service, ought to submit the intended tariff for the different services and products offered. He pointed out that in his opinion such tariff cannot be anything other than those related to the services and products deemed by the Act to be part of the broadcasting process, inclusive of subscription management service.
Multichoice Botswana had also argued that the BOCRA Act is presumed to only apply within Botswana and not beyond its borders and Clause 13 is ultra vires (beyond its legal power or authority) and thus unlawful.
However BOCRA argued in their replying affidavit that should the Court find that Multichoice Botswana cannot comply with clause 13 of the License on any basis then it contended that in the event that MCB cannot comply with clause 13 of the License then the very basis upon which the License was granted is flawed and one cannot simply set aside or exclude clause 13 of the License since its provisions are severable.
“In any event, MCB would be operating illegally since it cannot comply with clause 4.1 of its License in as much as the broadcasting service itself would be unauthorised and BOCRA will seek a declaratory order to that effect as part of its counter application,” BOCRA states.”
In his judgment Motswagole said that after a thorough review of the Botswana legislation and the more or less unitary European regulatory regime, he came to the conclusion that what is proposed in clause 13 not only is in accord with the relevant legislation but conveys the same spirit as the latter regime. He said it is therefore clear that what the regulatory authority sought to do and/or achieve by clause 13 of the license is neither illegal nor irrational and is clearly reasonable and an expressive of the very text and objectives of the enabling legislation.
“In the light of this conclusion there is no need to consider the counter application,” he said, further ruling that the application by Multichoice Botswana and the interdict issued on 20 October 2017 be discharged.
Multichoice Botswana was represented by Advocate Wim Trengove and Counsel Isabel Goodman through local lawyer Sipho Ziga of Armstrong Attorneys. Speaking to this publication, Ziga stated that they are still going to study the judgment and consult with their client before they can map the way forward.
“At this point I just want to point out that we are still studying the judgment and shall thereafter consult with our client. I cannot say whether we will appeal or not. But it is always a possibility, especially in matters like this one,” said Ziga.