In the case Justice Lakhvinder Walia of the Lobatse High Court ruled that services provided by MultiChoice do not amount to broadcasting in the context of the Broadcasting Act. The case arose after the NBB sought to regulate MultiChoice, like a TV station. MultiChoice is a service provider that receives its content from elsewhere. "And in issuing a broadcasting licence to an entity not providing a broadcasting service, the Board acted ultra vires its powers. Its decision therefore stands to be set aside," Walia ruled. Multichoice provides services ranging from subscriber management, subscription fees, marketing and sales, technical and installation support; and a national call centre. At the heart of the legal tussle was the relationship between the services provided by Multichoice and the reception of its signal. In the set up, Multichoice Africa is responsible for packaging of bouquets on the DSTV service, for uplinking of broadcast signals. Most of the channels included in the DSTV service are from Johannesburg to the PanAM Satellite ("PAS 7"). MultiChoice monitors the provision of the DSTV service to the entire continent from South Africa.
While acknowledging that counsel from both parties to the dispute had filed detailed and well researched heads of argument, the summaries that the salient and critical question to be determined by the Court from the Board 's argument was: 'Did the NBB commit a reviewable irregularity when it concluded that Multichoice Botswana was engaged in broadcasting as defined and therefore requires a licence? If not, the application must fail'.
