Mokaila turns Mascom appeal down

Mascom Wireless Botswana who recently lost with costs a case in which it had sought a review of the lawfulness of a directive promulgated by the Botswana Communications Regulatory Authority (BOCRA), is far from giving up, Botswana Guardian can reveal.

Mascom took the matter to Gaborone High court before Justice Michael Leburu complaining about BOCRA’s decision to regulate the Mobile Termination Rates (MTRs) in the country. Their view is that the rates as set by BOCRA are very low and wants them increased. But, BOCRA and telecommunications experts see this differently as they believe Mascom simply wants to protect their interest and profit at the expense of the consumer.

Having dismally failed to convince the court, Mascom has decided to exploit another avenue – appealing to minister of Transport and Communications, Kitso Mokaila in a move that legal experts believe should have been their first step before challenging BOCRA in court.But despite having thought they had a good case, they found Mokaila unshakable as he turned down their request stating that the court has made its decision on the matter.

Minister Mokaila confirmed that Mascom has appealed to him. Speaking to BG News Mokaila said, “Yes, I can confirm that Mascom has contacted and appealed to me by way of a letter from their Chief Executive Officer, Jose Cicero who wrote requesting for my intervention and overturning the ruling.  
“I have since replied them and in my response I told them that the court has pronounced the judgment and there is nothing I can do and the only way out for them will be to appeal to the Court of Appeal,” said Mokaila. It seems Mascom will not give up until they get a favourable response if their Chief Communications and PR Officer, Tebogo Lebotse- Sebego’s response is anything to go by.

Confirming that it is true they appealed to Mokaila, Lebotse-Sebego said that was in line with the Communications Regulatory Authority Act. “We made an appeal to the Honourable Minister Onkokame Kitso Mokaila, seeking his intervention, in what we perceive to be an uneven playing field created by a situation, unheard of in any competitive mobile market, local or international, where the same retail service is regulated for the different competitive providers at different price ceilings,” she said.

According to Lebotse-Sebego Mascom’s plea to the Minister was borne out of a rejection by BOCRA for Mascom to review its retail offering, even though such a review would still retain Mascom’s offer as the lowest tariffs for national calls in the market.
Mascom also accused BOCRA for not properly consulting. But BOCRA demonstrated to the court that before making up its final decision, they conducted a study and consultation for about 14 months as well as making presentation with the operators on a one-on-one basis showing them the information study.

Mascom has the largest subscriber base when compared to other operators - Orange Botswana and BTCL - through its brand beMOBILE.  The BOCRA directive clearly stipulates charges that mobile network operators charge each other for network interconnection.
In 2016 BOCRA study found the rates to be at 29 thebe.

The study determined that 29 thebe was way above costs and directed operators to reduce over a period of two years. The first reduction was on 1st June 2017 reduced from 29 to 22 thebe and the final reduction was on 1st June 2018 to 13thebe per minute.
This is what Mascom did not like. They took the matter to court, but Justice Leburu dismissed the case stating amongst others that the decision by BOCRA is within the context of its decision-making powers and demonstrates that a reasonable and rational choice and decision was made by BOCRA.

Mascom had wanted the court to determine if BOCRA had acted in accordance with its statutory obligations to take regulatory decisions in the open, transparent, accountable, proportionate and objective manner in terms of the Communications Regulatory Authority Act when it issued the regulatory directive No.1 of 2017 on the 24th March 2017 determining the charges that the mobile network operators have to charge each other for network interconnections,.

Mascom Wireless felt that the BOCRA directive - which set Mobile Termination Rules that were to apply on 1st June 2017 and also directed three operators to review their prices to remove the Off Net Mobile voice calls by 1st June 2018 to cost 13thebe - was illegal, irrational, and improper and wanted it reviewed and set aside.

Justice Leburu dismissed the application with costs at attorney to client scale inclusive of costs related to engagement of Senior Counsel.