Makate’s Please Call Me fight is not about intellectual property — it’s about keeping your word

Whether or not Kenneth Nkosana Makate is the true inventor of Please Call Me is irrelevant, legal experts at Barnard Inc. and patent experts at the CIPC have argued.

“Although this matter finds its origins in the realm of intellectual property (IP), it primarily relates to a contractual dispute,” Barnard Inc. commercial director Koos Benadie and IP specialist Alisha Muller said.

Benadie and Muller’s views align with those of three former patent examiners at the Companies and Intellectual Property Commission (CIPC) in Pretoria.

In 2019, Anathi Njokweni, Masisange Mketsu, and Thandanani Cwele wrote an opinion stating that intellectual property rights received only passing treatment in Makate’s case against Vodacom.

All three worked as patent searchers at the CIPC. Njokweni has a PhD Biotechnology (UWC), Mketsu has an MSc in Biochemistry (UWC), and Cwele holds a PhD in Chemistry (UKZN).

The five experts explained that the dispute stems from an oral agreement between Makate and former Vodacom product development manager Philip Geissler.

Anathi Njokweni, Masisange Mketsu, and Thandanani Cwele — former Companies and Intellectual Property Commission patent examiners

Koos Benadie and Alisha Muller, Barnard Inc.

Vodacom and Makate agreed on the fact that he pitched his idea of a method to “buzz” someone else’s phone without airtime on 21 November 2000 while he was a trainee accountant.

Vodacom acknowledged Makate in an internal newsletter announcing that his idea was ultimately developed into a product initially named “Call Me”, which launched in March 2001.

However, MTN had patented and launched a similar product — also dubbed “Call Me” — in January of that year.

The court heard that Geissler had made a verbal agreement with Makate regarding compensation for the idea but hadn’t committed to a specific amount.

In an email to Makate, Geissler didn‘t promise anything but said he would speak to Vodacom’s CEO at the time if Please Call Me became a success.

Makate first sent Vodacom letters of demand regarding the compensation he was owed in 2007. He launched legal action in 2008.

The case reached South Africa’s apex court in 2016.

Vodacom contended that Geissler had no authority to conclude such an agreement on the company’s behalf.

However, the Constitutional Court did not buy Vodacom’s argument. It ruled that Geissler had the ostensible authority to conclude such a contract.

In its ruling, it also noted that Geissler was not called as a witness.

Vodacom communique recognising Kenneth Nkosana Makate for his Please Call Me idea

“The issue of whether there was any possible patent infringement by Mr Makate is irrelevant to the agreement,” Benadie and Muller told MyBroadband.

“The agreement was not subject to a warranty by Mr Makate that the idea was novel or that it did not fall part of the prior art, or infringe on any third party rights.”

Whether Makate was involved in the development or launch of the product is also irrelevant to this inquiry, the attorneys stated.

“In essence, the contract between Mr Makate and Mr Geissler was for an idea in exchange for compensation,” said Benadie and Muller.

“Therefore, the issue at hand is not about determining possible intellectual property rights but rather whether the oral agreement entered into between Mr Makate and Mr Geissker had been breached.”

What remains, then, is to determine what Vodacom should’ve and would’ve paid for the idea.

However, one can also not ignore that this case has dragged on in South Africa’s courts for sixteen years — at great cost.

When the Constitutional Court ordered Vodacom and Makate to negotiate compensation in good faith, Makate demanded R20 billion, and Vodacom countered with R10 million. (This is according to details contained in court documents.)

A flurry of legal action in which Makate’s legal team demanded documents and data that Vodacom said it didn’t have caused negotiations to drag on.

A dispute between Makate and his funders also took an ugly turn, potentially causing delays.

When talks ultimately deadlocked, it triggered a clause in the Constitutional Court’s ruling that gave Vodacom’s current CEO the responsibility of determining suitable compensation.

Vodacom Group CEO Shameel Joosub returned with an offer in January 2019 of R47 million for Makate’s “Buzz” idea.

Makate rejected the money and launched legal action in the High Court, arguing that Joosub had made a mistake in his calculations.

The High Court found in Makate’s favour. Vodacom appealed, and the Supreme Court also found in Makate’s favour.

The Supreme Court ruling essentially states that Vodacom should pay Makate a minimum of R29 billion.

However, it was a close ruling, with a panel of five judges split 3–2.

The critical difference between the two judgements was that the majority said Vodacom should use Makate’s revenue share models to calculate the compensation he was owed.

The minority judgement said Joosub’s models were fine but that he calculated the compensation over the wrong timeframe.

All five judges agreed on one issue: Joosub made a mistake in only calculating Makate’s compensation over five years.

Both the majority and minority judgements said he should’ve calculated the compensation over at least 18 years.

Had one more judge concurred with the minority ruling, Joosub would’ve had to recalculate the compensation using his models.

This would’ve increased Joosub’s offer to over R150 million — an amount Vodacom would likely have been willing to pay to put the Please Call Me saga to bed.

However, as things stand today, Vodacom said it will take the matter back to the Constitutional Court.