Justice Walia dismisses Munhumutapa appeal

LEKOPANYE MOOKETSI
Correspondent | Monday November 22, 2010 00:00

Munhumutapa appealed to the High Court, seeking an order to set aside NBB's decision to revoke their licence.

The company was praying to court to grant an order extending the commencement date to 1 November 2010 as well as ordering NBB to bear the costs of the matter. NBB revoked Munhumtapa's licence after the company failed to commence broadcasting on a number of occasions. They were first issued with a licence in 2007 and the commencement date of the broadcasting service was to be no later than six months. But since then Munhumutapa has been making applications for extensions to the commencement date.

The extensions were duly granted but service was not commenced in compliance with the stipulated dates.  The final deadline was set by NBB for the end of June last year. But this deadline was not met and in November last year, the company was invited to show cause why the licence should not be revoked. 

The meeting was held where it was resolved to revoke the licence. The company was informed about this decision in January hence their decision to appeal to the High Court. In its appeal, Munhumutapa claimed that NBB acted in contravention of the Broadcasting Act by barring a number of their representatives from a meeting where the decision was made.

The company claimed in making its decision, the board disregarded the level of investment in the project. It further claimed that NBB disregarded procedures for awarding licences adopted by neighbouring countries and the realities of the worldwide recession.

The company contended that NBB disregarded their efforts in complying with the conditions of the licence and the serious commitment to funding by the company's financiers. The company submitted that NBB did not consider that they have set 1 November 2010 as the date for the launch of the service.  In his ruling, Judge Walia said there was nothing on record to suggest that the some of the MABC representatives were barred from attending the NBB meeting as it claimed in their appeal. The judge did not hesitate in rejecting the company's principal ground that it had not received a fair hearing. He said during NBB meeting, the Board explained that the company's commencement of service date expired on 30 June 2009. This was five months back but the company had not requested for any extension.

'Thus the licensee was in violation of the licence conditions because they had not commenced operations,' judge ruled.

He said the licensee was informed that the NBB secretariat was sent to MABC offices on numerous occasions and they reported that they found neither equipment nor evidence of pass-through channels as previously communicated by the company. 

'The Board said that MABC's ability to comply with licence terms and conditions was questionable, as they had not made any effort to apply for a new extension of commencement of service date. MABC has been silent despite their expired extension period of the launch of service and NBB had to follow them up,' Walia said.

He said the Board reminded MABC chairman, Oscar Kubara, that the MABC updated NBB on their acquisition of land in Phakalane where they would base their operations but have not shown any evidence of such transactions to the board.

Walia said the Board resolved that the MABC licence should be revoked because they have failed to launch their services. Instead they requested for a very long extension period. Other reasons were that there was no certainty in the launch plan of the MABC because they kept changing their plans. MABC had no evidence to back up their presentation that involved launch of service, land acquisition, financial guarantee, programming and development of set top boxes. The judge said NBB minutes clearly show that far from showing cause why the licence should not be revoked, MABC turned the meeting into a plea for more time, promising at one stage, an agreement between the financiers and the company would be provided on November 24, 2009.

The judge said it was common cause that no such agreement has been forthcoming.

'The respondent was clearly led on a merry dance. Its decision and the reasons therefore are precisely stated in paragraph 7.1 of the minutes. On what is before me, I cannot say that the decision to revoke the appellant's licence is wrong in any way,' the judge ruled.

He ordered that MABC should pay for the costs of the appeal.

He said if MABC had reason to believe that complaints or representations made by the company were not properly reflected in the minutes, it had the right apply for the record to be amended. 'That it did not do so, suggests that the appellant was satisfied that the minutes were a correct record of the proceedings.'  MABC was represented by Moses Kadye Attorneys while Masire Mthimkhulu Attorneys acted for NBB.