MultiChoice beats BOCRA in court
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Botswana Communications Regulatory Authority (BOCRA) has lost a court case wherein it was seeking to quash an urgent application, brought to the High Court by MultiChoice Botswana.
BOCRA had demanded that MultiChoice submit its intended tariffs. MultiChoice Botswana shunned the responsibility arguing that the tariff design and bouquet crafting lies with MultiChoice Africa while the Botswana subsidiary is only the custodian of the formers contracts.
MultiChoice Botswana, the custodian of DStv pay television in the country had dragged BOCRA before the High Court to interdict a letter which would have forced it to submit revised tariffs by the 17th of September.
MultiChoice Botswana rushed to court to seek to suspend its obligations under BOCRA’s clause 13 of the subscription management service license. The licence deals with the tariffs charged on DStv subscribers and DStv’s packaging of bouquets. The legal challenge was also intended to block BOCRA from suspending Multichoice’s license should the latter not make the September 17th deadline. A legal hawk representing BOCRA, Virgil Vergeer of Collins Newman and Company argued that MultiChoice’s urgency in the application brought forward was self-created and speculative.
Vergeer argued before High Court judge, Justice Tshepho Motswagole that MultiChoice had failed to comply with the mandatory requirements needed to argue for an urgent application “They have failed to satisfactorily demonstrate that it is an urgent application,” Vergeer contended. Furthermore he argued that MultiChoice’s case was premised on fear that BOCRA might take an enforcement action which might result in them losing their broadcast licence, while in fact the rescission of an operating license is only considered as matter of last resort, when all the other options have been explored.
He further contended that, there is mechanism in terms of the BOCRA Act that MultiChoice be given an invite through a letter to submit its revised tariffs. Afterwards, he argued, it is only then that BOCRA is given a further 60 days to accept or counter the proposal before proceeding to give MultiChoice a response to indicate whether it is in agreement with the proposal or not. “It is not a given that if there is no compliance by the 17th the license should be revoked. It’s a matter of last resort. It’s a possibility, not a given,” Vergeer argued.
Vergeer wondered aloud why Multichoice had not taken the case to the courts much earlier because they had threatened court action on the 10th of August 2017. Furthermore, he noted that when BOCRA reiterated its stance, MultiChoice still didn’t take the legal route, arguing that it was incumbent upon MultiChoice to have approached the court timeously and promptly. Vergeer had also pleaded with the court to not come to the aid of the other party that has not clearly complied with the regulations of an urgent application. However, Advocate Stephen Vivian representing MultiChoice argued that while there was no certainty as to what BOCRA would do with its powers in the current case, they however could elect to use it to sanction the pay television service.
“We cannot in good conscience say that, ‘just impose a penalty on us’, we have to take action.” He further noted, “if we were to sit down and let them take action it can happen that when we come back they will say the urgency is self-created.We are being proactive-its urgent.” Said Vivian. He had further reiterated that MultiChoice Botswana does not design subscription bouquets and tariffs; a job he contended is executed by MultiChoice Africa.
That being the case, he noted that MultiChoice Botswana would hamstrung if asked to submit its tariffs because they want clause 13 of the license stricken off as they cannot be expected to submit under it while they only deal with contract management. Responding to the timing of the interdict Advocate Vivian said that theirs was a pre-emptive measure to ensure that they react the before the damage is done by BOCRA, through a possible sanction such as a rescission of an operating license. Vivia also prayed to the court that it interdict clause 13 as it gives MultiChoice Botswana the responsibility that actually lies with MultiChoice Africa stating that if they are wrong, they will deal with the argument at a later stage. The case is expected to be argued in full next month.
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DPP drops Kably threat to kill case
The Botswana Democratic Party (BDP) Chief Whip and Member of Parliament for Letlhakeng/Lephephe Liakat Kably has welcomed the Directorate of Public Prosecution (DPP)’s decision not to prosecute BDP councillor, Meshack Tshenyego who allegedly threatened to kill him. However, the legislator has warned that should anything happen to his life, the state and the courts will have to account.
In an interview with this publication, Kablay said he has heard that the DPP has declined to prosecute Tshenyego in a case in which he threatened to kill him adding that the reasons he received are that there was not enough evidence to prosecute. “I am fine and at peace with the decision not to prosecute over evidential deficits but I must warn that should anything happen to my life both the DPP and the Magistrate will have to account,” Kablay said.
Connectedly, Kably said he has made peace with Tshenyego, “we have made peace and he even called me where upon we agreed to work for the party and bury the hatchet”.
The DPP reportedly entered into a Nolle Prosequi in the matter, meaning that no action would be taken against the former Letlhakeng Sub-district council chairperson and currently councillor for Matshwabisi.
According to the charge sheet before the Court, councilor Tshenyego on July 8th, 2022 allegedly threatened MP Kably by indirectly uttering the following words to nominatedcouncilor Anderson Molebogi Mathibe, “Mosadi wa ga Liakat le ban aba gagwe ba tsile go lela, Mosadi wame le banake le bone ba tsile go lela. E tla re re mo meeting, ka re tsena meeting mmogo, ke tla mo tlolela a bo ke mmolaya.”
Loosely translated this means, Liakat’s wife and children are going to shed tears and my wife and kids will shed tears too. I will jump on him and kill him during a meeting.
Mathibe is said to have recorded the meeting and forwarded it to Kably who reported the matter to the police.
In a notice to the Magistrate Court to have the case against Tshenyego, acting director of Public Prosecutions, Wesson Manchwe cited the nolle prosequi by the director of public prosecution in terms of section 51 A (30) of the Constitution and section 10 of the criminal procedure and evidence act (CAP 08:02) laws of Botswana as reasons for dropping the charges.
A nolle prosequi is a formal notice of abandonment by a plaintiff or prosecutor of all or part of a suit or action.
“In pursuance of my powers under section 51 A (300 of the Constitution and section 10 of the criminal procedure and evidence act (CAP 08:02) laws of Botswana, I do hereby stop and discontinue criminal proceedings against the accused Meshack Tshenyego in the Kweneng Administrative District, CR.No.1077/07/2022 being the case of the State vs Tshenyego,” said Manchwe. The acting director had drafted the notice dropping the charges on 13th day of March 2023.
The case then resumed before the Molepolole Magistrate Solomon Setshedi on the 14th of March 2023. The Magistrate issued an order directing “that matters be withdrawn with prejudice to the State, accused is acquitted and discharged.”
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DPP seizes prosecution duties from Police
Directorate of Public Prosecution (DPP) has finally taken over prosecution from the Botswana Police Service (BPS). The police have been prosecuting for years, but the takeover means that they will now only focus on investigations and then hand over to the DPP for prosecution.
Talks of complete takeover began as far back as 2008, but for years it seemed implementation was sluggish. However, the Minister of Justice, Machana Shamukuni, revealed that the complete takeover is expected to be completed soon.
During a presentation to the Committee of Supply by Shamukuni this week, it was revealed that the project has been implemented in 22 police stations nationwide, including Maun, Selebi-Phikwe, Palapye, Francistown, and Kasane. He further stated that the project has been allocated P3,000,000 for the 2023/2024 financial year to facilitate the opening of more satellite offices for the DPP.
Shamukuni said the Lobatse station is scheduled for a complete takeover by the end of May 2023, while the Kasane DPP satellite office has been established and became operational as of February 1, 2023.
“As reported previously, preparations are at an advanced stage to open a satellite office in Tsabong to curtail expenses, as well as frequent long-distance trips to these areas, as it is currently serviced by the Lobatse DPP office,” Shamukuni said.
Shamukuni said that the takeover strategy is to enable a seamless and gradual takeover of prosecution from the BPS without overwhelming and overstretching the thin resources at its disposal.
According to Shamukuni, the implementation of the prosecution takeover project has increased the workload of the 211 prosecutors in the DPP establishment.
Furthermore, the Justice Minister said DPP statistics show that the DPP has a total of 11,903 cases and dockets as of January 2023. He indicated that this is a significant increase in the number of cases being handled by the DPP, considering that in November 2021, the DPP had just over 8,471 files.
“Out of the total case load, 8 382 are cases pending before various courts while 3521 are dockets received from law enforcement agencies of which 1 325 are awaiting service of summons while the rest are being assessed for suitability of prosecution or otherwise” said Shamukuni.
He further stated that The DPP has consistently maintained an 80% success rate in matters completed at court.
“As at the end of January 2023, the success rate stood at 82.3% against a target of 90% whilst the average performance in respect of turnaround time for conclusion of cases at court stood at 17.5 months against a target of 18 months,” he said.
BACKLOG OF CASES – LAND TRIBUNAL
Meanwhile, Minister Shamukuni has revealed that Gaborone land Tribunal is experiencing a backlog of cases. Before parliament this week, Shamukuni revealed that a total 230 appeals were completed for the period of April 2022- December 2022 and only 76.5% of them were completed within set time frame.
The minister said that the Gaborone division has experiencing a backlog of cases due to manpower constraints and he further indicated that presiding officers from other divisions have been brought in to expedite case disposal.
He further indicated that the land tribunal is a specialized court that has been empowered to resolve appeals arising from land boards. “It has been mandated to determine appeals from the decisions of Physical planning committees of Districts Councils” said Shamukuni.
Land Tribunal relocated to the Ministry of Justice from Ministry of Land and Water Affairs in November 2022.
“An amount of P37, 842,670 is requested to cover salaries, allowance and other operational expenses for the Department of the land Tribunal,” alluded Shamukuni
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BCP, AP stalemate in 7 constituencies
When the Botswana Congress Party (BCP), Alliance for Progressives, Botswana Labour Party (BLP), and conveners reconvene next week, the controversial issue of allocation of the seven constituencies will be the main topic of discussion, WeekendPost can reveal.
Not only that, but the additional four constituencies will also dominate the talks. The idea is to finally close the “constituency allocation phase,” which has proven to be the most difficult part of the ongoing negotiations.
Earlier this year, the two parties announced that the marathon talks would be concluded by February. Even at a media briefing last month, BCP Secretary General Goretetse Kekgonegile and Publicity Secretary Dr. Mpho Pheko were optimistic that the negotiations would be concluded before the end of February.
However, it is now mid-March and the talks have yet to be concluded. What could be the reasons for the delay? This is a question that both Kekgonegile and Pheko have not responded to, as they have ignored the reporters’ inquiries. However, a senior figure within the party has confided to this publication as to what is delaying the highly anticipated negotiations.
“We are reconvening next week to finalize constituency allocations, taking into account the additional four new ones plus the outstanding seven,” he explained. It later surfaced that Gaborone Central, Gaborone North, Mogoditshane, Tswapong North, Francistown West, Tati West, and Nata Gweta are all contested by both BCP and AP. This is because the other 50 constituencies were allocated by December of last year.
The three parties have failed to find common ground for the Bosele Ward by-elections. Are these constituencies not a deal breaker for the talks? “None of the constituencies is a deal breaker,” responded a very calm BCP official.
In Bosele Ward, AP has yielded to BCP, despite most of its members disapproving the decision. On the other hand, BLP has refused, and it will face off with BCP together with Botswana Democratic Party (BDP) and Umbrella for Democratic Change (UDC).
The decision by BLP to face off with BCP has been labelled as a false start for the talks by political observers.