MultiChoice, BOCRA face off in court over tariffs

MultiChoice Botswana (MCB) has won temporary amnesty in an urgent court application to interdict Botswana Communications Regulatory Authority (BOCRA) from implementing its enforcement guidelines against them.

At the centre of controversy is Section 90 of the Botswana Communication Regulatory Authority Act which requires all the licensed service providers to submit their intended tariffs to BOCRA for approval. 

MCB argues that it is impossible for them to provide such tariffs because they do not provide such services, instead such services are provided by MultiChoice Africa.MCB brought the matter before High Court Judge Tshepho Motswagole on an urgent basis on Wednesday morning where seasoned attorneys were lined up. 

Attorney Virgil Vergeer of Collins Newman and Company assisted by Keamogetswe Sefakwe appeared for BOCRA. MCB was represented by Advocate Stephen Vivian appearing with instructing Attorney Sipho Ziga of Armstrongs Attorneys. The two were accompanied by Attorneys Wendy Rosenberg and Samantha Sinden of Werksmans in South Africa.

 BOCRA’s argument is that as a licensed service provider, MCB is bound by the terms of the license and the Act which require them to submit the tariffs for approval. At Wednesday’s hearing the court only dealt with the issue of urgency which was decided in favour of MCB meaning the hearing of the application will be expedited with argument set for 20th October 2017.

BOCRA attorney argued that MCB failed to demonstrate that the matter is urgent as they have known about the terms of the licence since 29 June 2017, but did nothing to challenge it in court. 

While MCB attorney, Advocate Vivian argued that the matter was urgent because BOCRA had since given them up to 17 October 2017 to have complied failing which BOCRA would implement its enforcement guideline.BOCRA is required to have filed its affidavit on September 29, 2017 while MCB will file its own on October 10, with heads of arguments set for filing on October 17.

Should the court grant the interdict MCB will then pursue its review application against the decision of BOCRA relating to the implementation of license conditions, alternatively the conditions as required by section 90 of the Communication Regulatory Act. Court records show that both parties have been exchanging letters but never got to agree with each other as BOCRA wanted MCB to comply with the license in its entirety notwithstanding that MCB has instructed its attorneys of record to institute court proceedings applying for declaratory relief as to proper interpretation of Clause 13 of the licence, and to the extent necessary, to review and set aside the Authority’s decision to include terms in the licence.

MCB argues that they cannot comply with this clause because their role is to provide subscription management services for subscribers to the DStv service Botswana. These services include subscription fee collection, marketing and sales, technical and installation support and the operation of a national call centre.MCB does not provide a broadcast service, and does not have any control or input over the content channels which are included in DStv service.What prompted MCB to act was a letter dated 5th September written by BOCRA to MCB’s then general manager Billy Sekgororoane informing the latter of BOCRA’s mandate to carry out tariff regulations in terms of Section 90.

MCB wrote back through their attorneys on 29 August requesting BOCRA to provide them with a written undertaking not to take steps against compliance of clause 13 of the MCB licence. But, BOCRA could not budge maintaining that their position as indicated in their letter of 18 August 2016 stands.