Gaborone High Courtís Justice Leatile Dambe dismissed with costs yesterday an application by Mascom Wireless to interdict the implementation of enforcement of a reduction of tariffs.
The cellular network service provider had dragged the Botswana Communications Regulatory Authority (BOCRA), along with rivals Botswana Telecommunication Corporation Limited, and Orange Botswana (Pty) Ltd, to court to secure an interdict on a March 24, 2017 directive that ordered a reduction in tariffs.
Opposing the application were Dutch Leburu and Kgotso Botlholwe, who argued that the matter was not urgent in that Mascom Wireless had three months (from March to May) to approach the court, but only chose to do so on May 30, a day before the implementation of the directive.
Botlholwe stated that the application had not satisfied several requirements prescribed by the court proceedings, further stating that it had not laid down circumstances that qualified it to be heard on an urgent basis.
“The applicant had two months to deal with this matter, but the applicant did not act despite the fact that BOCRA always maintained that the directive was going to be implemented on June 1 (yesterday). This is not a sudden event,” he told the court, adding that the only communication they got from Mascom was a threat to challenge the directive.
Leburu urged the court to dismiss the matter with immediate effect saying proper procedure was not followed to authorise the application and the power of attorney as prescribed in the 2009 resolution by the Mascom board of directors.
“This matter should not be in court in the first place,” he said. Leburu accused Mascom of trying to hide their motive behind the application, which he said was for financial gain. He said BOCRA is
However, leading a team of four, Faisal Ismail said his client has a serious displeasure with the manner in which BOCRA was trying to implement the directive.
“We are calling for transparency in implementation of this directive. The Act obliges BOCRA to act in a transparent manner,” he said. He added that the matter was urgent in that if Mascom failed to secure an interdict, it was going to suffer irreparable reputational damage, should it succeed in challenging the directive at a later stage. He stated that on several occasions Mascom Wireless tried to engage BOCRA, but claimed that the organisation was not cooperative.
On three different occasions, Ismail said, Mascom wrote to BOCRA but only got the response for the first letter two weeks later. He said that there was no response to subsequent letters until on May 26 when BOCRA responded with additional conditions that were outside the initial directive.
He appealed to the court that Mascom stood to be ridiculed and risk being labelled a ‘bully’ by its customers if the new tariffs were to be enforced and later reversed.
He dismissed Leburu’s argument that the application was not properly authorised accusing him of trying to bring in technicalities through the backdoor.
When dismissing the urgent application with costs, Dambe granted Mascom an opportunity to submit a fresh application. The parties will meet next Friday when Dambe presents her reasons for dismissing yesterday’s application.