Gaborone - A landmark ruling by a Gaborone High Court has granted the Botswana Communications Regulatory Authority (BOCRA) the right to regulate price increases by MultiChoice Botswana.
This is news that is likely to be followed with keen interest by the rest of the Southern African Development Community (SADC) region where MultiChoice has a monopoly. Citizens in countries like Namibia, South Africa, Zambia and Zimbabwe are also subjected to yearly increases by MultiChoice despite believing that the increases are not worth the channels that the company offers.
Unlike in Botswana, MultiChoice (the local operator of DStv) is still not regulated in other SADC countries, giving the South African owned company ammunition to increase its prices at will.
Delivering judgment, Justice Tshepo Motswagole granted BOCRA the right to regulate the tariffs MultiChoice (the local operator of DSTV) charges in Botswana.
MultiChoice Botswana took the regulatory authority to the High Court arguing that it should not be regulated in terms of its pricing.
At the heart of the dispute was Clause 13 of the licence BOCRA granted MultiChoice Botswana, allowing it to operate as a subscription service manager in Botswana. The clause stipulates that MultiChoice is required to secure BOCRA’s approval for traffic adjustments in Botswana. This clause is even detested by MultiChoice Africa, the local entity’s South African parent group.
MultiChoice Africa’s position is that it cannot submit to BOCRA’s regulatory jurisdiction and risk other African regulators following suit.
“If it is forced to submit to regulation in Botswana, it may have to re-evaluate its relationship with MultiChoice Botswana or the provision of DStv service to subscribers in Botswana in order to preserve its commercial viability,” lawyers for MultiChoice Botswana argued.
In court papers, the lawyers also argued that: “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.”
But BOCRA insisted that MultiChoice Botswana would be operating illegally in Botswana since it would not be complying with its licence conditions. BOCRA lawyers argued that the regulator would not fully apply the clause, its raison d’être (reason for living) was in jeopardy.
“The fundamental part of the Act will be defeated. The purpose of this provision (clause 13) is to protect consumers. The legislative purpose will be defeated if we cut out that clause. BOCRA’s whole purpose will be defeated if this review is upheld,” BOCRA lawyers stated.
Motswagole found that: “After a thorough review of the Botswana legislation and the more or less unitary European regulatory regime, I came to the conclusion that what is proposed in clause 13 not only is in accord with the relevant legislation, but also conveys the same spirit as the latter regime.”
It is, therefore, Motswagole said, clear that what the regulatory authority sought to do and/or achieve by clause 13 of the licence is neither illegal nor irrational, and is clearly reasonable and an expressive of the very text and objectives of the enabling legislation.
He further stated that anyone who wants to have a stake in the broadcasting process that is intended to be received in Botswana and sets up a network that will make the broadcasting material accessible by the members of the public in Botswana, acting either alone or in conjunction with others would be caught up by the regulatory regime established for Botswana.
“If anyone wants to make money out of the people of Botswana by engaging in broadcasting activity on Botswana such a person would bring himself or herself or itself if corporate body, under the jurisdiction of the Botswana regulatory regime,” he said.
The judge said the question is not where you are situated but that your deliberate and calculated actions are impacting the Botswana society and economy.