Vodacom’s legal battle with Kenneth Makate over compensation for his Please Call Me idea made headlines this month after Vodacom said it will pay him “reasonable compensation”.
Vodacom said, as per a Constitutional Court order, its CEO has determined the amount of reasonable compensation payable to Makate and now considers the matter as settled and closed.
Makate was quick to respond to Vodacom’s statement, saying he has not agreed to anything and that “the amount that the CEO has determined is shocking and an insult”.
This David versus Goliath case has captured the interest of many South Africans, including Communications Minister Stella Ndabeni-Abrahams and Gauteng Education MEC Panyaza Lesufi.
Lesufi said on Twitter that people must stand by “Nkosana ‘Please Call Me’ Makate” against “this bully called Vodacom”.
Ndabeni-Abrahams said “Just shut up Vodacom and do the right thing – Talk to Makate – instead of this poor PR stunt”.
It is not surprising that politicians, and many other people, are taking the side of the “hard-done-by employee” in his battle with the “big evil corporation”.
However, most people do not know the full story behind the Please Call Me service, and who really invented it.
Please Call Me Invention
Both Makate and former Vodacom CEO Alan Knott-Craig have been credited with the invention of the Please Call Me service.
Knott-Craig, with his biographer Eunice Afonso, wrote in his book Second is Nothing:
The Please Call Me idea happened by chance. Alan was leaning over the railing of the Vodacom building chatting to a colleague, Phil Geissler, when Phil pointed out one security guard trying to attract another’s attention, and because his buddy didn’t see him, the security guard called him on his cellphone. Alan immediately spoke to Leon [Leon Crouse] about creating a Please Call Me service.
Knott-Craig later said he never claimed to have invented the Please Call Me, explaining the head of new products and development brought an idea to him (Here is his full statement).
With so much focus on the battle between Vodacom and Makate, the true inventor of the Please Call Me service is seldom mentioned.
Ari Kahn, who previously consulted for MTN, created the “Call Me” technology in 2000 and said Vodacom has in private acknowledged him as the inventor of the service.
The SA Patent office granted the Call Me patent to Kahn and MTN, and recognized Kahn as the inventor on 22 January 2001.
As the true Please Call Me inventor, Kahn believes Makate should not get a cent from Vodacom for his “invention”.
Kahn said Makate was not the originator of Please Call Me, adding that the courts never once ruled he invented the service. “You cannot invent an idea – which is all he proposed,” said Kahn.
Kahn said Makate has no rights to the Please Call Me service and no rights to compensation as “the Kahn/MTN patent constitutes Prior Art”.
He added that Vodacom did not benefit one iota from Makate’s contribution, but rather from MTN choosing not to enforce its rights at the time.
“The entire case has been portrayed as ‘the little guy denied his due by the big bully network’ to garner sympathy and obfuscate the fact that he did not actually invent the service,” Kahn said.
Why Vodacom did not use this information
If Kahn was the inventor of the Please Call Me service, with the patent to prove it, it raises the question as to why Vodacom shied away from using this information in its legal battle with Makate.
In fact, Kahn warned Vodacom in May 2015 that it was making a “catastrophic and strategic miscalculation” in its legal defence.
In a letter to Vodacom CEO Shameel Joosub, Kahn told him that Vodacom’s legal team was making a mistake in trying to convince the court of “deficiencies in contract”.
Kahn advised Vodacom to focus on the “irrefutable intellectual property rights to the Call Me Service” instead.
“This case hinges entirely on intellectual property law – on who owns the creation and who has the right to compensation,” Kahn told Joosub.
The inventor is “whoever publicly discloses first”, and rights are conferred upon whoever files for protection under the sovereignty of IPR law.
“The irrefutable fact is the Call Me technology was created by me in 2000 during my tenure at MTN as lead R&D consultant,” said Kahn.
Kahn described this defence as a silver bullet to win the case, but there was one problem – Vodacom would have to admit that it essentially launched a technology owned by MTN.
There is speculation that MTN threatened legal action against Vodacom when it launched the Please Call Me, but decided not to follow through to avoid a nasty spat between the operators.
Kahn explained that Vodacom may have felt legally exposed and vulnerable acknowledging him and MTN as the source of the service.
It is also interesting to note that the Please Call Me patent entered the public domain in 2007, when MTN failed to pay a yearly annuity.
It is unclear if it was deliberate from MTN, or whether it was an oversight not to pay the annual fee.
What the court case was about
It should be noted that the legal battle, which ultimately lead to the constitutional court ruling, was not about who invented Please Call Me.
Makate and his legal team argued that his boss at the time when he came up with the idea, Philip Geissler, verbally assured him that he would receive compensation.
Vodacom responded by saying that while Makate came up with the idea, it was done within his scope of employment – making it Vodacom’s property.
Makate argued that since he worked in finance, and not a department pertaining to business ideas, the development of the idea was not within his scope of employment.
After Makate was unsuccessful in The South Gauteng High Court and the Supreme Court of Appeal, he took the matter to the Constitutional Court.
The Constitutional Court found that Vodacom was bound by the agreement it made with Makate and should pay him “reasonable compensation”.