MABC TV appeals against NBB revoking licence

LEKOPANYE MOOKETSI
Correspondent | Friday September 17, 2010 00:00

Munhumutape is challenging a decision by NBB to revoke its broadcasting licence.  NBB revoked the company's broadcasting licence in January this year because it had failed to commence broadcasting on numerous occasions.  NBB has in the past extended the company's deadline to start broadcasting.  But the proposed pay television station has failed to go on air.

In their grounds of appeal to the High Court, the lawyers for Munhumutape, Moses Kadye Attorneys, claim that their clients were denied the opportunity to fully present their case.  The lawyers claim that during the NBB hearing, the board decided to limit Munhumutape's delegation to four members only. 

'It is respectfully submitted that the decision was made arbitrarily without consulting the appellant.  No criteria was used to determine which of the four members of the MABC TV delegation would be allowed in.   There was no reason given as to why the respondent did not seek adequate facilities in order to give the appellant a full hearing,' the lawyers stated in their grounds of appeal.  'Limiting the members of the appellant's delegation to only four was wrongful and unlawful in that it was tantamount to denying the appellant a hearing.  A hearing to be reasonable must be a full hearing and not a fragmented or a partial one.'

MABC claims that some 'experts' were barred from attending the meeting and therefore deprived from making presentations on behalf of the company.

The lawyers further submitted that NBB failed to consider the fact that MABC's project involved huge injections of money that could not be arranged overnight.  'It takes a considerable period to be put into place.'  The lawyers allege that MABC had secured a financing to the tune of Euro 200 million.  They further claim that MABC's preparations to go on air had reached an advanced stage.  Another claim is that the launch date has been fixed by 'experts' at November 1, 2010.  MABC lawyers said NBB failed to note the disastrous consequences that would follow the revocation of the licence.  They charged that NBB did not take into account the peculiar circumstances in the nature of setting up a television station when it revoked the licence. 

In their response, NBB lawyers' Masire Mthimkhulu Attorneys related events that have occurred from the first time that MABC was granted a broadcasting licence.  The lawyers indicated that MABC were given an extension on a number of occasions since 2008.  MABC always gave excuses such as the global economic crisis for failing to commence broadcasting.  Lawyers said on July 7, 2009, MABC issued a status report in which it was alleging that it had launched a platform on test basis from Paris.  It further claimed that movie channels would be added for the commercial launch planned for end of December 2009.  The NBB attorneys said at this stage, MABC did not apply for an extension of the commencement date.  They said MABC acted as if everything was normal.  'It was not even concerned that it has once again failed to comply with the commencement date.'

The lawyers averred that it was clear at this point that MABC had no resources nor the financial muscle to undertake a project of this size and magnitude.  'It was completely depended on a foreign investor who may not even bother to even invest in it as they had already exhibited.  This was therefore a project doomed to fail and the appellant knew it, but it was buying time for some kind of miracle to happen,' NBB lawyers charged.

They also mentioned a meeting in which a delegation from the Botswana Telecommunications Authority (BTA) met with MABC representatives sometime last year.  During this meeting, it was found that the construction of the MABC studio had been suspended since last year as there was no funding for the project.  MABC informed the BTA officials that no equipment had been secured as negotiations with potential financiers were still ongoing.  The lawyers said MABC informed the BTA delegation that their television channel went technically live on July 1, 2009, having launched the test signal in Paris, France.   But the BTA officials were not shown the test signal as MABC claimed that its technicians had not arrived on time to set up the reception equipment.  The delegation was not taken on a site visit as they were told that nothing had changed since their last visit.  The delegation was informed that the financial guarantee would be finalised by October 2009.  It was further informed that MABC was in negotiations with a new financier called Potentia Incorporated from Dubai. 

The lawyers said on October 14, a BTA delegation was sent again to seek and obtain clarification from MABC on issues of concern.  The delegation noted that there has not been any material progress as MABC had alleged that developments would ensure immediately after securing funds at the end of October.  The lawyers said MABC informed the BTA officials that the test signal was currently passing through channel Aljazeera.  However, when the delegation wanted to check the channel, they were informed that the building did not have power and, therefore, could not be shown the test signal.  The delegation was not taken on site visits as they were again told that nothing had changed since their last visit. 

'It is our humble submission that as at January 14 the respondents took the decision to revoke the appellants' licence there was in fact no evidence at all that the appellant's preparations were at an advanced stage.'