Mascom loses bitter money war with BOCRA
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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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BPS, Mosala Funeral Parlour butt heads over SA national remains
A squabble has broken out between Pule Mosala Funeral Parlour and the Botswana Police Service (BPS) over the remains of a South African national who has been in the Mosala mortuary for more than nineteen months. The deceased was one of 10 suspects who were controversially shot dead during a lengthy shootout with law enforcement authorities in Gaborone’s Phase 2 early last year.
The deceased individual’s family based in Soweto, has encountered difficulties in repatriating the body which has been in the care of Mosala Mortuary Services. Following the incident, it has emerged that all 10 bodies were transported to PFG mortuary in Lobatse for a brief period while the police attempted to locate their next of kin. It is reported that the families of the deceased were eventually identified and informed to come and identify their loved ones, including other South African nationals who were part of the criminal group. These families also witnessed the autopsy procedures conducted at Princess Marina Hospital in Gaborone.
Except for the family from Soweto, nine of the bodies were claimed and taken by their separate relatives. The Soweto family claims they lack the resources to bring the body back to South Africa and has made it known that they are looking for money. To end the supposed verbal agreement over the body’s storage for repatriation, Mosala Funeral Service has filed a case against the police at the Lobatse High Court.
According to Keakantse Mmotlhana, the company’s Sales and Marketing Manager, 10 people who were killed in Phase 2 by gunfire were all temporarily transferred to one of PFG’s branches in Lobatse by the police while efforts were made to find their next of kin. She expressed outrage at the statement made by the Minister of Defense and Security, recently.
After Assistant Police Commissioner Dipheko Motube called her office to apologize for giving the Minister wrong information during a news conference, she confirmed that they had accepted the apologies. He made it clear that one of the victims was still at Pule Mortuary in Lobatse.
Bushie Mosala, the director and owner of Mosala Funeral Services, confirmed that the body of a South African national has been in his mortuary for the past nineteen months. He expressed his desire for the police to remove the corpse from the mortuary, characterising the situation as a “nightmare.” He has instructed his legal team to file a lawsuit against the police in the Lobatse High Court concerning the body.
Mosala urged the acting Police Commissioner to come forward and apologize to the nation for the situation, asserting that the public has the right to know the truth regarding the body of the South African national, w
C -002Bhich was preserved by the police as evidence.
The South African High Commission in Gaborone had not responded to queries from Weekend Post at the time going of going to press.
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BOSETU frustrated by Gov’t new dispute winning strategy
Botswana Sectors of Teachers Union (BOSETU) has expressed alarm over a troubling trend by the government. Tobokani Rari, Secretary General of the BOSETU, stated that it appears that these days, whenever there is a dispute between workers and the government, the administration is fast to run to the courts to attempt and muffle unions.
“This is quite disturbing development, we have seen it with the Botswana Doctors Union, there was a disagreement over the shift allowance, government rushed to court, they indeed got order that was saying the doctors should go and do the work. We have seen it with the nurses, they rushed to court they got the order, we are now seeing it with the teachers, they rushed to the court and they got what they wanted,” said Rari, who also served as the Secretary General of BOFEPUSU.
Rari raised concerns that the government’s enforcement of teacher’s work, through a court order will result in reduced classroom productivity and morale. Rari added that this situation would negatively impact labour relations and teachers emotional wellbeing due to dissatisfaction in their work places leading to persistently poor academic outcomes.
“You can get an order that forces people to work, but what happens at work, it heightens emotions, it destroys relationships and the morale goes down and productivity does. Courts and judgments don’t solve productivity issues. Productivity only comes when people are satisfied at the workplace, so if you force them to work through a court order then you may not get the maximum out of the working population,” said Rari
MESD vs BOSETU COURT CASE
“As you are aware, the Ministry of Education approached courts and they were demanding three things from the court in this case between BOSETU and the ministry. First, they were demanding that the joint letter that was written by BOSETU and Botswana Teachers Union (BTU) asking members to stop doing course work because there was no agreement be declared unlawfully and BOSETU should write to its members and withdraw that letter within 24hrs. The second thing that they were looking for, was to interdict BOSETU from further issuing any instructions to that effect going forward. Lastly was that court should hold BOSETU to pay the cost of the lawsuit on a punitive scale,” Rari said.
Rari stated that the court decided to rule in favour of the Ministry of Education on all three relieves sought, that the savingram should be declared unlawful, that BOSETU should withdraw the contents savingram within 24hrs.
Court also said BOSETU should not issue any of such instructions going forward up until the case of contempt that BOSETU has taken to court, the contempt of the 2009 judgment has been decided. Court also awarded cost to the ministry on a punitive scale.
“BOSETU is a law abiding citizen and therefore we are bound by any laws and judgments that are there in Botswana and arise on the courts of Botswana hence we have complied with the order. On the 31st after the court case, we wrote to all our members and told them that the contents of that savingram as far as coursework is concerned has been withdrawn,” said Rari.
Rari said what happened in this case is that the judge decided to listen to the urgency without the responding affidavits of the opposing party, BOSETU, and went on to rule the merit of the case, which surprised the union.
“However we have been in discussion with our lawyers because if we leave things like this, we feel like we cannot leave that unchallenged. We have taken a decision to appeal the judgment,” Rari confirmed.
2023 COURSEWORK AND INVIGILATION AGREEMENT
“We would like to make our members aware that the following day after the judgment, we were able to meet the Ministry of Education and we have arrived at a conclusion that we signed an agreement that coursework rates will be increased by 5%. If court had ruled that coursework is the duty of the teachers’ means it wouldn’t have been any agreement after the court case, it tells you that the issue is still open and it is on the table. We have arrived at an agreement that there is going to be an increment on all components of coursework and invigilation,” Rari pointed out.
Rari further explained that Article 2 says union party is to submit detailed proposals on the intensity of the coursework for further engagement. Intensity of coursework means where the coursework payment starts in terms of varying from different subjects. He said the outcome based subject that are taught Maun Senior Secondary School and Moeng college which are agriculture and hotel and tourism is that ministry have agreed and acknowledge that there are some peculiarity in their coursework and therefore should be paid in line with the peculiarities that are contained in their coursework.
CONGRESS RESOLUTION
Rari pointed out the resolutions taken at the conference where the issue of application of corporal punishment was addressed. “BOSETU will issue out a memo to their members to advise them that they should not apply corporal punishment, they should leave it to be applied in line with the Education Act.”
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BMC sees red as mass buffaloes disrupt plans to supply schools
The Botswana Meat Commission (BMC) which had struck a deal with the Ministry of Education to supply some schools in the northern part of the country is counting losses as mass migration of buffalos jeopardize the Commission’s plans.
Information reaching this publication shows that the beef exporter was recently given the greenlight to supply government schools with beef. According to documents seen by this publication, as a result BMC had scheduled to buy and collect cattle in the Nata-Gweta and Boteti constituencies from 11 to 17 September.
This was after BMC and the Ministry of Education struck a deal for the former to supply government schools with beef. Letters exchanged between Ministry officials state that it has been recommended to the ministry to support BMC by allowing it to supply schools with beef products.
The Ministry indicated that it was aware that some schools have contracts that are currently running with suppliers such as local butcheries.
The Ministry revealed that at the same time BMC has 256 tins of frozen quality meat at its Maun Plant.
The Ministry requested the Director-Regional Operations to appoint an officer to manage the procurement of meat for schools that do not currently have running contracts. The Ministry further stated that Modalities of collection will be arranged between the region and the schools identified.
According to the Ministry, a list of schools including the condition of their cold rooms and their number of deliveries and kilograms per week they buy should be compiled. The Ministry also requested its officials to share the list with headquarters and the acting director-Basic Education, and engage BMC accordingly to procure.
But this plan ran into trouble after it emerged that between 300 to 500 buffalos migrated from the buffalo fence area to Nata, Dukwi and Mosetse areas.
The Department of Veterinary Services sprang into acting by revising movement protocol for cloven-hoofed animals with immediate effect following buffalo sightings in zone 3b which covers Nata/Sowa, zone 3c which is around the Dukwi areas as well as zone 6a, which covers the Mosetse area, which fall under zones, 3b, 3c, 5,6a and 8.
The Department of Veterinary Services indicated that as a result, movement of live cloven-hoofed animals and their products out of zones 3b, 3c, 5, 6a and 8 were prohibited and that movement of live cloven-hoofed animals within and into these zones is only allowed for direct slaughter at licensed slaughter facilities under veterinary movement permit issued through BAITS.
The department also indicated that the movement of fresh products derived from cloven-hoofed animals such as raw milk, skins and fresh meat into these zones is also only allowed under a similar arrangement.
Movement of live cloven-hoofed animals into these zones for rearing and other purposes will not be allowed, and farmers and the general public is requested to continue being vigilant and report any buffalo sightings to the nearest veterinary office, the police or the Department of Wildlife and National Parks, the department said.
Meanwhile the Ministry of Agriculture has stated that following the press release on prohibition of movement of live cloven-hooved animals and their products in and out of Zones 3b, 3c, 5, 6a & 8, the acting Minister of Agriculture Karabo Gare, his counterpart Acting Minister of Environment, Wildlife & Tourism Mabuse Pule, acting Permanent Secretary in the Ministry of Agriculture Mr. Joshua Moloi, Director of Veterinary Services Dr Kefentse Motshegwa and other government officials visited the areas of Sepako and Dukwi respectively on a mission to consult with communities regarding the invasion of the places by buffalos.
Minister Gare alluded that they have been sent by the President of Botswana, who is equally worried by the current situation. He noted that the affected areas have a total of around 300000 cattle and if the situation goes unchecked, there might be detrimental effects on the economy of this country.
He encouraged the communities to help government going forward by reporting any spotted buffalos in their areas, emphasizing that buffalos are dangerous and can kill people and that care should be exercised at all times.
The Director of Veterinary Services mentioned that they closed the above mentioned zones to allow for testing of buffalos & cattle for foot & mouth disease. The wildlife department’s Director Mr. Moremi Batshabang assured farmers and the community that they will eliminate small clusters of buffalos found within communities and translocate larger clusters to ensure their safety.