The High Court of Malawi in Lilongwe has dismissed an application for judicial review by MultiChoice Malawi against Malawi Communications Regulatory Authority (Macra) on DStv tariffs.
Court documents show that on June 3 2022, MultiChoice Malawi wrote Macra informing the communications regulatory body of their decision to increase subscription fees with effect from May 15 2022.
But in its response letter, Macra issued MultiChoice Malawi with a notice of preliminary findings of breach of Section 74 (2) of the Communications Act and Clause 11.2 of the Individual Content Services Licence for the Provision of Subscription Management Services in Malawi.
Macra’s notice further contained direction that MultiChoice Malawi should not implement the new proposed tariffs as they had not been approved until a final determination on the matter was made.
Following Macra’s notice, MultiChoice Malawi moved the courts to challenge the regulatory body on the grounds that it was acting beyond its authority by subjecting the service provider to a preliminary finding concerning revision of a tariff beyond the scope of its licence.
In its affidavits, MultiChoice Malawi also challenged Macra on the basis that Section 74 (1) of the Communications Act can only be invoked where a licencee duly authorised and recognised under the Act to set or revise tariffs has made such a decision which does not obtain in the case.
Apart from that, the service provider further challenged Macra on the basis that though Clause 11.2 of its licence requires that it should not change its approved tariffs without prior written approval of Macra, MultiChoice Malawi, the tariff referred to therein is not the DStv subscription tariff as there is nothing in the licence which allows it to set or revise DStv subscription tariffs.
Reads part of the court documents: “Such tariffs refer to tariffs which the claimant [MultiChoice] may charge the DStv customer service it provides per its SMS licence which it does not currently charge.”
But Macra opposed the application on the basis that MultiChoice Malawi has not exhausted all alternative remedies as per clause 32 of its licence and that the preliminary inquiry is allowed under the terms of the licence and Communications Act.
The application was further challenged on the basis that MultiChoice Malawi’s licence clearly stipulates that prior consent should be sought before effecting tariff adjustments as per clause 11.2 of its licence.
In her ruling dated July 25 2022, High Court Judge Violet Chipao observed that Multichoice Malawi has failed to exhaust alternative remedies and that, as such, the service provider came to the court prematurely.
“The application for injunction was consequential upon granting leave to commence judicial review. In the absence of leave for judicial review, the application for injunction cannot stand,” reads part of the ruling.
Chipao dismissed the application with costs and further advised MultiChoice Malawi to use alternative remedies.
In a statement announcing the tariff adjustments, MultiChoice Malawi said it considered the 25 percent devaluation of the Malawi Kwacha, 19.1 percent rate of consumer inflation and current economic pressures facing Malawi.
Among others, Premium bouquet was adjusted from K61 000 to K67 000, Compact Plus from K38 800 to K43 000, Compact from K25 000 to K27 500, Family from K14 900 to K16 400 and Access from K9 300 to K10 200.