High Court orders Baz to grant Kwese TV licence

HARARE - The High Court yesterday ordered the Broadcasting Authority of Zimbabwe (Baz)  to issue a licence to Econet Group’s pay television service, Kwese TV, to start broadcasting.

This comes after Baz declared Kwese TV illegal and warned the company against providing services without licence.

The development sparked a legal battle between Econet and President Robert Mugabe’s government, which again lost the battle yesterday after another 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 ZTV 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However, in a statement issued by Baz chief executive officer Obert Muganyura, Dr Dish’s licence had long been revoked after the company failed to launch a service.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.

High Court judge Charles Hungwe yesterday granted an order in favour of the telecommunications giant.

“Consequently, the application succeeds. It is therefore ordered as follows: Pending the final determination of this matter, it is ordered that: the operation of the purported termination of applicant (Dr Dish)’s Content Distribution Service License Number CD 0004 through a letter dated August 22, 2017 signed by second respondent (Muganyura) on the first respondent (Baz)’s letterhead be and is hereby suspended.

“Applicant shall be entitled to enjoy full rights and benefits of its licence as if the said letter of August 22, 2017 does not exist.

“Applicant shall be entitled to distribute the Econet Media Limited (Mauritius) content-based on the technical standards by the applicant to the first respondent and accepted by first respondent on October 21, 2016,” Hungwe ruled.

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 before 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 years 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 licensed 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 licensed service and had failed to pay licence fees for the past three years,” Muganyura said.

Beatrice Mtetwa and Tawanda Nyambirai appeared on behalf of Dr Dish, while Thembinkosi Magwaliba represented the respondents.

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