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Mascom loses bitter money war with BOCRA

Mascom Wireless Botswana has 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), to regulate the Mobile Termination Rates (MTRs) in Botswana. Mascom wireless says the rates as set by BOCRA are very low and wants them increased.

Many in the industry see Mascom’s bitter fight as an effort to protect the revenue it was making from Mobile Termination Rates (MTRs) since it has the largest subscriber based when compared to other operators. The directive sets out charges that mobile network operators charge each other for network interconnection. Botswana telecommunications Corporation Limited (BTCL) and Orange Botswana were also cited as second and third respondent but they chose to be spectators in this regulatory dispute.

Mascom wanted the court to determine if in issuing regulatory directive No1 of 2017 on the 24th March 2017, determining the charges that the mobile network operators have to charge each other for network interconnections, 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.

The mobile operator was also skeptical as to whether BOCRA acted duly in terms of its common law duty, arising under public administrative law, to act fairly and in accordance with the legitimate expectations it had created with the operators that it would, regarding the charges in case, complete the consultation process in which it was engaged with the operators. In essence Mascom Wireless is of the view that the directive that was issued by BOCRA is illegal, irrational, improper and wanted it reviewed and set aside.

On 24th March 2017, BOCRA issued a directive that set Mobile Termination Rules that were to apply on 1st June 2017 and further directed operators – Mascom, BTC and Orange – to review their prices to remove the Off Net Mobile voice calls by 1st June 2018. The Judge, Leburu was informed that Mobile Termination Rates (MTR) are wholesale rates per minute that the operators charge each other for voice calls that terminate in their respective networks, but that originate from one of the other operators’ networks.

Explained further, if a mobile telephone customer of Mascom makes a voice call to a customer of Orange, Mascom has to pay Orange for enabling the Mascom customer’s call to be connected to the Orange customer’s mobile telephone device via Orange network.
The stated purpose of the said directive was to implement the final recommendations of the 2016 Cost Model and Pricing Framework Study. The said Study was conducted by a United Kingdom firm of consultants named Interconnect Communications Ltd. There was a consultation process following the final report which was preceded by an interim report in March 2016 and the draft final report was delivered in September 2016.

“Before the draft reports and final draft report were submitted, consultation with the operators, spanning 14 months was done and presentations were made to the operators during information sessions about the project or study,” the court was told.  It was further revealed that following upon public notice to all relevant stakeholders about the study, BOCRA initiated a one-on-one project meetings with each of the operators in January 2016. At this meetings a presentation was made to each of the operators, including Mascom.

It was shared in court that data from Mascom and other operators was used as inputs to populate the first Draft Cost Model. In March 2016, BOCRA issued the interim Report on cost modeling and pricing framework. Evidence presented before the court indicates that on March 22nd 2016, a stakeholder consultative workshop was held whereat all stakeholders were granted an opportunity to make presentations, responses and input on the issues described in the interim report. “Mascom elected not to make oral presentations at the workshop. Instead, it chose to subsequently submit written comments on the interim report on 11th April 2016.

“Mascom acknowledged as a starting point that the approach in the interim report was “well balanced and sensible approach with respect to the considerations made on the key issues that underpin the development of costs models and a pricing framework suitable for Botswana.”  It further made its presentations with respect to potential remedies to the pricing issues on off-net compared to “on-net” voice tariffs. BOCRA then made a consolidated report based on the submissions made by all including Mascom. 

After a collective meeting with Mascom, Orange and BTCL whereat a presentation on the project status was given to the operators, a draft final report which set the preliminary results of the study was issued by BOCRA on September 2016. All stakeholders including Mascom were once again given an opportunity to make presentations and Mascom obliged through its written representations on the 24th October 2016.

Mascom at this stage made complaints that it had not been furnished with full access to the cost model, for purposes of verifying and validating the costs results; Mascom also complained that the level of the MTRs set out in the draft final report were too low. BOCRA however proceeded and came up with a draft final report and shared it with Mascom and other stakeholders on 29th November 2016. On 17 January 2017 BOCRA held a meeting with Mascom to afford it an opportunity to raise its concerns on the Draft Final report.

Mascom further raised its concerns on the study and arising from such concerns three teleconferences between Mascom and consultants were conducted and one was on the 31st January 2017. BOCRA Board on 6th March 2017 adopted the final report but modified the recommendation of a three year glide path and adopted a two year glide path. “It was the reduction from the three years to the two years that formed Mascom’s casus belli, hence the present review application.”

MASCOM’s QUALMS

According to Mascom, at all relevant times during the consultation period, the consultants and BOCRA executive management team, conveyed to the operators that a reduction in the MTRs will be implemented over a three year glide path period. Mascom contended that the three year glide path period was effected by the BOCRA Board without prior notice or consultation and further that it legitimately expected that a three year glide path would be implemented and that if BOCRA was minded to vary same, it should have give Mascom a further hearing. Mascom argued that the consultation process was incomplete.

“Although attacking the entire process leading to the issuance of the said directive, is not seeking to set aside the entire directive. Mascom’s sharp pointed arsenal is directed at paragraphs 11.2 and 11.3 of the said directive dealing with MTRs,” observed Judge Leburu. Currently Mobile Termination Rates excluding VAT stand at 0.295 and by 1st June 2017 they were at 0.220 and on 1st June 2018 MTRs will be 0.130. Mascom wants these provisions set aside on grounds of irrationality, unlawfulness and unfairness. “Interestingly, other operators Orange Botswana and BTCL have adopted a passive role and have filed notices to abide by the court’s decision,” Judge Leburu noted.

JUDGE QUASHES MASCOM

Judge Leburu found that the regulator in BOCRA invited relevant stakeholders to participate in the study at formative stages before the directive was promulgated. He also established that several documents that information was shared by the regulator, its consultants and the operators. He further pointed out that workshops were held in addition to telephone and teleconference ng. Further drafts interim reports were prepared, shared and revised up until version 13 (Draft Final report). The Judge noted that Mascom fully participated in the consultation process, right from inception of the study, up to including the preparation of the Draft Final Report.

“The process of consultation was thus open and transparent.” He dismissed Mascom’s assertion that the consultation process was incomplete and inchoate, “in my view, it is bereft of substance,” he said. The Judge also noted that it is in the public interest that a consultation process must at some point come to an end so that certainty and predictability can prevail.  He said the directive was issued for public good, particularly the reduction of MTRs rates as well as Off-net and On-net tariffs.

“The decision by BOCRA, within the context of its decision making powers in my view, demonstrates that a reasonable and rational choice and decision was made by BOCRA.” Mascom’s application was dismissed with costs, inclusive of costs related to engagement of Senior Counsel.

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Masisi to dump Tsogwane?

28th November 2022

Botswana Democratic Party (BDP) and some senior government officials are abuzz with reports that President Mokgweetsi Masisi has requested his Vice President, Slumber Tsogwane not to contest the next general elections in 2024.

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African DFIs gear to combat climate change

25th November 2022

The impacts of climate change are increasing in frequency and intensity every year and this is forecast to continue for the foreseeable future. African CEOs in the Global South are finally coming to the party on how to tackle the crisis.

Following the completion of COP27 in Egypt recently, CEOs of Africa DFIs converged in Botswana for the CEO Forum of the Association of African Development Finance Institutions. One of the key themes was on green financing and building partnerships for resource mobilization in financing SDGs in Africa

A report; “Weathering the storm; African Development Banks response to Covid-19” presented shocking findings during the seminar. Among them; African DFI’s have proven to be financially resilient, and they are fast shifting to a green transition and it’s financing.

COO, CEDA, James Moribame highlighted that; “Everyone needs food, shelter and all basic needs in general, but climate change is putting the achievement of this at bay. “It is expensive for businesses to do business, for instance; it is much challenging for the agricultural sector due to climate change, and the risks have gone up. If a famer plants crops, they should be ready for any potential natural disaster which will cost them their hard work.”

According to Moribame, Start-up businesses will forever require help if there is no change.

“There is no doubt that the Russia- Ukraine war disrupted supply chains. SMMEs have felt the most impact as some start-up businesses acquire their materials internationally, therefore as inflation peaks, this means the exchange rate rises which makes commodities expensive and challenging for SMMEs to progress. Basically, the cost of doing business has gone up. Governments are no longer able to support DFI’s.”

Moribame shared remedies to the situation, noting that; “What we need is leadership that will be able to address this. CEOs should ensure companies operate within a framework of responsible lending. They also ought to scout for opportunities that would be attractive to investors, this include investors who are willing to put money into green financing. Botswana is a prime spot for green financing due to the great opportunity that lies in solar projects. ”

Technology has been hailed as the economy of the future and thus needs to be embraced to drive operational efficiency both internally and externally.

Executive Director, bank of Industry Nigeria, Simon Aranou mentioned that for investors to pump money to climate financing in Africa, African states need to be in alignment with global standards.

“Do what meets world standards if you want money from international investors. Have a strong risk management system. Also be a good borrower, if you have a loan, honour the obligation of paying it back because this will ensure countries have a clean financial record which will then pave way for easier lending of money in the future. African states cannot just be demanding for mitigation from rich countries. Financing needs infrastructure to complement it, you cannot be seating on billions of dollars without the necessary support systems to make it work for you. Domestic resource mobilisation is key. Use public money to mobilise private money.” He said.

For his part, the Minster of Minister of Entrepreneurship, Karabo Gare enunciated that, over the past three years, governments across the world have had to readjust their priorities as the world dealt with the effects and impact of the COVID 19 pandemic both to human life and economic prosperity.

“The role of DFIs, during this tough period, which is to support governments through countercyclical measures, including funding of COVID-19 related development projects, has become more important than ever before. However, with the increasingly limited resources from governments, DFIs are now expected to mobilise resources to meet the fiscal gaps and continue to meet their developmental mandates across the various affected sectors of their economies.” Said Gare.

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TotalEnergies Botswana launches Road safety campaign in Letlhakeng

22nd November 2022

Letlhakeng:TotalEnergies Botswana today launched a Road Safety Campaign as part of their annual Stakeholder Relationship Management (SRM), in partnership with Unitrans, MVA Fund, TotalEnergies Letlhakeng Filling Station and the Letlhakeng Sub District Road Safety Committee during an event held in Letlhakeng under the theme, #IamTrafficToo.

The Supplier Relationship Management initiative is an undertaking by TotalEnergies through which TotalEnergie annually explores and implements social responsibility activities in communities within which we operate, by engaging key stakeholders who are aligned with the organization’s objectives. Speaking during the launch event, TotalEnergies’ Operations and HSSEQ,   Patrick Thedi said,  “We at TotalEnergies pride ourselves in being an industrial operator with a strategy centered on respect, listening, dialogue and stakeholder involvement, and a partner in the sustainable social and economic development of its host communities and countries. We are also very fortunate to have stakeholders who are in alignment with our organizational objectives. We assess relationships with our key stakeholders to understand their concerns and expectations as well as identify priority areas for improvement to strengthen the integration of Total Energies in the community. As our organization transitions from Total to Total Energies, we are committed to exploring sustainable initiatives that will be equally indicative of our growth and this Campaign is a step in the right direction. ”

As part of this campaign roll out, stakeholders  will be refurbishing and upgrading and installing road signs around schools in the area, and generally where required. One of the objectives of the Campaign is to bring awareness and training on how to manage and share the road/parking with bulk vehicles, as the number of bulk vehicles using the Letlhakeng road to bypass Trans Kalahari increases. When welcoming guests to Letlhakeng, Kgosi Balepi said he welcomed the initiative as it will reduce the number of road incidents in the area.

Also present was District Traffic Officer ASP, Reuben Moleele,  who gave a statistical overview of accidents in the region, as well as the rest of the country. Moleele applauded TotalEnergies and partners on the Campaign, especially ahead of the festive season, a time he pointed out is always one with high road statistics. The campaign name #IamTrafficToo, is a reminder to all road users, including pedestrians that they too need to be vigilant and play their part in ensuring a reduction in road incidents.

The official proceedings of the day included a handover of reflectors and stop/Go signs to the Letlhakeng Cluster from TotalEnerigies, injury prevention from tips from MVA’s Onkabetse Petlwana, as  well as  bulk vehicle safety tips delivered from Adolf Namate of Unitrans.

TotalEnergies, which is committed to having zero carbon emissions by 2050,  has committed to rolling out the Road safety Campaign to the rest of the country in the future.

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