Supreme Court sinks Kwesé

Econet Media (Mauritius) cannot distribute Kwesé TV satellite content to Zimbabwean viewers because it failed to comply with the terms and conditions under which it was granted the licence, the Supreme Court has ruled.

This follows the Broadcasting Authority of Zimbabwe's (BAZ) appeal to the superior court contesting a High Court decision allowing Econet Media Limited (Mauritius) to distribute Kwesé TV satellite content to Zimbabwean viewers.

The lower court nullified a decision by BAZ cancelling the content distribution licence awarded to Econet Media's partner, Dr Dish (Pvt) Ltd to provide the service pending confirmation of the provisional order.

Following a court ruling on October 25, but made available yesterday, Kwesé parent company - Econet Media - said the satellite television was shutting down, after 18 months in operation.

In a statement issued at the weekend, the firm said the development was due to a review of its business strategy and services. Justice Tendai Uchena, sitting with Justices Ben Hlatshwayo and Bharat Patel, quashed the High Court decision on the basis that Mr Dish had sought an order to protect conduct which was clearly against the provisions of the country's broadcasting laws.

"The appeal has merit and should be allowed," said Justice Uchena. "The appeal is allowed with costs. The judgment of the court a quo is set aside and substituted with the following: The application is dismissed with costs."

Justice Uchena pointed out in his ruling that Section 15 of the Broadcasting Services Act laid down the procedure Mr Dish should have complied with. Mr Dish, the judge said, should have applied for an amendment of the licence instead of giving BAZ notice in terms of section 17 of the Act of the change in its partnership.

"By providing service from Econet Media (Mauritius) when the terms and conditions of its licence required it to provide services from My TV Africa, the respondent failed to comply with the terms and conditions on which the licence was granted," said Justice Uchena.

The judge said BAZ and its chief executive Mr Obert Maganyure correctly exercised their rights in terms of Section 16 (1) (d) of the Act to cancel the licence.

The section entitles BAZ to cancel a licence if a licensee fails to comply with the terms and conditions of the licence or if the licensee has ceased to provide the service specified in the licence.

"The respondent, while aware that it had not applied for and had not been granted an amended licence, provided a service which it was not licensed to provide. It, therefore, contravened Section 16 (1)(d) of the Act.

"It, therefore, failed to establish a prima facie right," said the judge.

Last year, the High Court allowed Dr Dish to enjoy the full benefits of its licence, pending finalisation of the main dispute. Dissatisfied with the outcome, BAZ, through its lawyer Advocate Thembinkosi Magwaliba, instructed by T.H Chitapi and Associates, approached the Supreme Court on appeal. It argued that the High Court erred in not finding that its jurisdiction to deal with the application arising from the suspension or cancellation of a licence was ousted by Section 43(1) (e) of the Broadcasting Act.

BAZ contended that the High Court decision allowing Econet Media to operate without a proper amendment of Dr Dish's licence was improper. To that end, BAZ sought an order quashing the High Court decision, with costs.

Dr Dish was in 2007 issued with a licence to specifically provide My TV channels to Zimbabwean viewers, but it struggled to pay the required fees for years. It also reached a point of failing to provide the service, until BAZ issued a notice of intention to cancel the licence in October last year.

Last August, Dr Dish partnered Econet Media Limited (Mauritius) and paid all the outstanding fees, before notifying BAZ of its intention to add the Kwesé TV channels to its list of content. BAZ received the money, but went on to terminate the licence through a letter dated August 22 this year. Mr Farai Mushoriwa acted for Dr Dish.