Source: Court withholds ruling on Kwese TV – DailyNews Live
Tendai Kamhungira 6 September 2017
HARARE – The High Court yesterday withheld ruling on whether an
application by Econet Group’s pay television service, Kwese TV, in which
it is challenging the Broadcasting Authority of Zimbabwe (Baz) over an
operating licence, was urgent or not.
This comes after Baz declared Kwese TV illegal and warned the company
against providing services without a licence.
The development could set the stage for another bruising legal battle
between Econet and President Robert Mugabe’s government, which lost a
highly-publicised battle against the telecoms, media and technology
group’s founder, Strive Masiyiwa, in 1998.
Econet Media last week announced the introduction of Kwese TV in Zimbabwe,
to compete with the country’s sole State-owned television station as well
as Naspers’ Multichoice.
Indications were that Kwese TV would rise on a third party licence held by
Dr Dish.
However, in a statement issued by Baz chief executive officer Obert
Muganyura, Dr Dish’s licence had long been revoked after the company
failed to launch a service.
Kwese TV approached the High Court last week on an urgent basis demanding
the reversal of a decision by Muganyura.
In the application, Dr Dish is the applicant, while Baz and Muganyura are
the respondents.
By the time of going to print last night, High Court judge Charles Hungwe
had not yet delivered his ruling on the urgency of the matter, and both
parties’ legal counsels, Beatrice Mtetwa for the applicant and Thembinkosi
Magwaliba for the respondents confirmed the development.
“I am not aware if the ruling has been made because judgment was reserved
and the judge said that the ruling would be ready by today but nothing has
been communicated as yet,” Magwaliba said yesterday.
The matter was heard on merits after the judge dismissed a preliminary
point that had been raised by Muganyura, in which he claimed that the
application had been brought at the wrong court. He argued that the
application must have been made at the Administrative Court as opposed to
the High Court.
Dr Dish argued in court papers that Muganyura’s actions, without board
approval, are ultra vires the powers vested in him, adding that his
decision threatened 1 635 jobs and 24 145 subscribers.
“Monetary loss exceeding $1,4 million including staff costs at the rate of
$979 500 per month (and) loss of projected revenue for the months of
August and September amounting to $2,4 million at the rate of $88 000 a
day (and) the risk of 1 635 jobs (and) the risk of a write-down of more
than $4,1 million already incurred in the purchase of set-top boxes (as
well as) great inconvenience to the 24 145 customers, who were enjoying
the service and 7 259, who had applied,” Dr Dish executive chairperson
Nyasha Muzavazi said in his founding affidavit.
The Mugabe government, which has a stranglehold on the country’s
broadcasting sector, would be particularly wary of new entrants into the
industry, months ahead of the 2018 elections.
Although some Zimbabweans have access to Multichoice programming, many
cannot afford the service.
Kwese TV’s entrance could significantly reduce the cost of accessing media
alternatives.
Media surveys suggest that the majority of Zimbabweans still rely on the
State-controlled Zimbabwe Broadcasting Corporation (ZBC) radio and
television channels for news and information.
The State has, in recent years, issued radio licences to entities
connected to the ruling party and government in a bid to provide a veneer
of plurality.
Zimbabwe, with its one national television station, lags behind the rest
of the continent in broadcasting plurality, despite being the second
African country – after Nigeria – to see the introduction of a television
service in 1960.
Television was only introduced in South Africa in 1976, nearly two decades
after Zimbabwe.
Dr Dish argued in the application that Muganyura’s actions without warning
were a violation of the applicant’s and ordinary Zimbabweans’ freedom of
expression and the media.
On the other hand, Muganyura said that Dr Dish was licenced at its own
instance to provide My TV Africa content distribution service, before
making an amendment to BosTV in terms of Section 15 of the Broadcasting
Services Act (Chapter 12:06).
“On October 12, 2016, first respondent (Baz) served applicant (Dr Dish)
with a letter requesting applicant to show cause why its licence should
not be cancelled on the basis that applicant had ceased to provide the My
TV Africa licenced service and had failed to pay licence fees for the past
three years,” Muganyura said.
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