Twists and turns in R63-billion Please Call Me battle

Vodafone says Please Call Me inventor Kenneth Nkosana Makate mistook its intentions in its application to be admitted as a friend of the court in his case against Vodacom.

According to a Sunday Times report, Vodafone accused Makate of trying to “mute” it to block the court from benefiting from its input.

Vodafone recently applied to the Constitutional Court to be admitted as amicus curiae — a friend of the court — on the case.

An amicus curiae is an individual or organisation not party to a legal case but assists a court by offering information, insight, or expertise.

Makate countered by filing papers objecting to Vodafone’s application. He accused the company of trying to boost Vodacom’s case and exaggerating his claim’s financial impact.

To this end, he said the mobile operator’s calculations for his claim — up to R63 billion — are incorrect. He said his claim of R9.7 billion from 2020 still stands.

In reply to his objection, Vodafone chief legal director Nickola Vidovich said Makate “erroneously categorised” its intentions.

Vidovich emphasised that Vodafone’s proposed role in the case is more limited than Makate had assumed. It won’t participate as a primary litigant.

Despite Makate’s stance that his R9.7-billion claim from 2020 still stands, the Supreme Court of Appeal (SCA) has ordered that Vodacom pay him a 5%–7.5% share of Please Call Me revenue generated over 18 years, including interest.

It also said the mobile operator must use Makate’s legal team’s models to calculate the revenue figure.

A MyBroadband analysis of the relevant court papers showed that his minimum compensation would be around R29 billion.

Vodacom reached the same conclusion before filing papers in the Constitutional Court to challenge the SCA’s court order.

“Having considered the SCA judgment and order, it is Vodacom’s view that there are key aspects of this matter which do not accord with the spirit of the law and that the judgment and order are fundamentally flawed,” it said.

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

The litigation between Makate and Vodacom has bounced between various courts for years.

Makate’s claim is that he shared his idea for a free missed-call service with his supervisor at Vodacom in 2000, which was developed into Please Call Me in 2001.

He said he was promised compensation for the idea, which he never received.

In 2008, he took legal action against Vodacom, asking for 15% of Please Call Me revenue as compensation.

Vodacom had launched the service — first called “Call Me” — in March 2001. It acknowledged Makate’s contribution in an internal newsletter announcing the launch.

Initially, the High Court and SCA both ruled in Vodacom’s favour. However, in 2016, the Constitutional Court ruled that Makate was owed compensation.

The court dismissed Vodacom’s argument that product development manager Philip Geissler didn’t possess the authority to commit Vodacom to a compensation agreement with Makate.

Emails before the court showed that while Geissler hadn’t promised any compensation, he had committed to speak to former Vodacom CEO Alan Knott-Craig on his behalf.

The Constitutional Court ordered the mobile operator and Makate to negotiate compensation in good faith.

Court documents revealed that Makate had asked for R20 billion. Vodacom countered with R10 million.

Talks eventually deadlocked, triggering 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 offered to pay Makate R47 million for his idea.

However, Makate rejected the offer and relaunched legal action in the High Court, saying Joosub had made mistakes in his calculations.

The High Court found in favour of Makate. Vodacom also lost after taking the matter on review to the Supreme Court.

Vodacom offered to re-open negotiations with Makate following Vodacom’s latest application at the Constitutional Court, to which he agreed.

“Mr Makate has noticed the media release and the desire by Vodacom that the matter be amicably resolved,” Makate’s legal representatives at Stemela & Lubbe Inc. stated.

“It is noteworthy that this is the first time (since the negotiations ended in a deadlock in December 2017) that Vodacom has given any indication that it wants this matter to be settled.”

Vodacom and Makate’s legal team have declined to comment on the progress of the negotiations.