Broadcasting Authority of Zimbabwe and Obert Muganyura v Dr Dish (Pvt) Ltd

The respondent (Dr Dish Pvt Ltd) held a Content Distribution Service License (Number CD0004) issued by the first appellant (Broadcasting Authority of Zimbabwe) on 18 October 2012, valid until 17 September 2022. The license required the respondent to provide 'MY TV AFRICA' services. After less than two years, the respondent stopped providing this service. On 23 February 2014, the respondent applied to amend its license under s 15(1)(c) of the Broadcasting Services Act to change from MY TV AFRICA to Blue Ocean Satellite Television (BOSTV). The first appellant instructed the respondent to submit the application in Form BS 1 and pay arrear license fees. The respondent failed to comply, did not provide the licensed service, and did not pay fees for three years. On 12 October 2016, the second appellant (CEO of the Broadcasting Authority) called on the respondent to show cause why its license should not be cancelled under s 16(1)(d) and (e) of the Act. The respondent replied indicating it had secured a new partner, Econet Media (Mauritius), and would pay outstanding fees. On 21 October 2016, the respondent notified the first appellant of the change of partnership under s 17 of the Act. In August 2017, the respondent paid arrear fees, but on 22 August 2017, the first appellant cancelled the license on the ground that the respondent was no longer providing service from MY TV AFRICA as required. The respondent approached the High Court seeking an interim interdict to suspend the cancellation, which was granted. The appellants appealed to the Supreme Court.

• Whether the second appellant (CEO) had authority to cancel the license in the absence of Board members whose terms had expired
• Whether the respondent established a prima facie right to an interim interdict
• Whether notification under s 17 of the Broadcasting Services Act could effect an amendment of license conditions normally requiring application under s 15
• Whether the High Court had jurisdiction to grant a declaratory order in circumstances where an administrative appeal remedy was available
• Whether the requirements for granting an interim interdict were satisfied

The appeal was allowed with costs. The judgment of the High Court was set aside and substituted with an order dismissing the application with costs.

A notification under s 17 of the Broadcasting Services Act (relating to material alterations in information furnished in the license application) cannot operate as an amendment to substantive license conditions, which requires a formal application under s 15 of the Act. A licensee providing services from a different content provider than specified in the license conditions, without having obtained an amended license under s 15, is acting unlawfully and in breach of license conditions. No prima facie right can be established for purposes of an interim interdict where the applicant's conduct is contrary to statutory provisions. An interim interdict cannot be granted to protect unlawful conduct or to prevent a regulatory authority from exercising powers it is entitled to exercise under statute. Where a licensee has ceased to provide the service specified in the license or failed to comply with license terms and conditions, the Broadcasting Authority is entitled to cancel the license under s 16(1)(d) and (e) of the Act.

The court observed that where authority to exercise Board functions has been granted to a Chief Executive Officer under s 9(6) and (7) of the Fourth Schedule to the Broadcasting Services Act, such authority continues until it is proved to have been revoked. The court noted that statutory provisions must be construed within their context and not given meanings inconsistent with the part in which they are found. The court referenced the principle that an interim interdict is an extraordinary remedy, the granting of which is at the discretion of the court, subject to established requirements. The court indicated that if a party believes administrative delay is excessive, the appropriate remedy is to seek an order compelling determination, not to proceed unlawfully. During the hearing, the appellants conceded that the High Court has jurisdiction to grant declaratory orders, and that ground of appeal was abandoned, confirming that administrative appeal remedies do not oust the High Court's jurisdiction to grant declaratory relief.

This case establishes important principles in Zimbabwean administrative and broadcasting law: (1) It clarifies the distinction between notifications under s 17 of the Broadcasting Services Act (relating to changes in information provided in the original application) and amendments to license conditions under s 15 (requiring formal application and approval). A mere notification cannot effect a substantive amendment to license terms and conditions. (2) It reaffirms the principle that interim interdicts cannot be granted to protect unlawful conduct. To establish a prima facie right, an applicant must show they are engaged in lawful conduct; no prima facie right exists where the applicant's conduct contravenes statutory provisions. (3) It provides guidance on the authority of chief executive officers to exercise Board functions under delegated authority, particularly during periods when Board terms have expired, based on evidence of past practice and conduct of the parties. (4) It applies the principle from Airfield Investments that a party cannot have a right, whether prima facie or clear, contrary to law, and an interdict cannot ordinarily be granted where the allegedly offending conduct is properly premised on statutory authority. The case is significant for regulatory practice and the enforcement of license conditions in Zimbabwe.