BY CHARLES LAITON
Independent satellite broadcaster Dr Dish recently approached the High Court after BAZ chief executive officer Obert Muganyura cancelled its licence on the basis that its service provision was illegal.
Justice Charles Hungwe on Friday ruled in Dr Dish’s favour.
But BAZ alongside Muganyura on Monday approached the Supreme Court challenging the ruling arguing Justice Hungwe erred in all material respects and further that Dr Dish’s application was not urgent.
“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 said.
“The High Court erred in granting an order authorising the respondent (Dr Dish) to distribute content from Econet Media Ltd (Mauritius) in the absence of an amendment to its licence in terms of section 15 of the Act.”
BAZ further said Justice Hungwe in finding that Dr Dish had established irreparable harm notwithstanding that the alleged harm was self-inflicted and was suffered while it was operating unlawfully.
BAZ said the High Court further grossly erred in failing to find that the respondent had a more efficacious alternative remedy provided in terms of section 43 of the Act and a claim for damages.
According to the court papers, Dr Dish is a holder of licence number CD 0004 issued by BAZ in 2012 which expires in 2022.
However, in October last year, Muganyura wrote to Dr Dish calling upon the company to show cause why its licence should not be cancelled.
On August 22 this year, four days after Dr Dish made payment of outstanding licence arrears of $434 000 and 10 months after showing cause why its licence should not be cancelled, BAZ delivered two documents, one acknowledging receipt of the payment and the other advising that its licence had been cancelled with effect from August 22.
In his ruling, Justice Hungwe said the conduct of BAZ in the saga left no doubt that the matter was not properly handled.
“The applicant publicly announced that it was rolling out its broadcast service through the provision of Kwese TV content Clearly, applicant has invested heavily in both human and capital resources for which a huge loss will naturally follows
should the Board refuse to reverse second appellant’s (Muganyura) letter of cancellation,” Justice Hungwe said.
“What is required to be established at this stage is not whether the applicant acted within the law in incurring those expenses, but whether it will suffer irreparable harm should the interim relief not be granted. It seems to me that it is, at this stage, immaterial whether applicant brought such consequences upon itself or not; the inquiry is whether, as a fact, should the interim relief not be granted, applicant will suffer irreparable harm. I am satisfied that indeed such irreparable harm would visit the applicant.”
BAZ is being represented by TH Chitapi and Associates.-Newsday