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Makate asks ConCourt to dismiss Vodacom’s appeal

Sibahle Malinga
By Sibahle Malinga, ITWeb senior news journalist.
Johannesburg, 14 Mar 2024
‘Please Call Me’ inventor Nkosana Makate.
‘Please Call Me’ inventor Nkosana Makate.

‘Please Call Me’ inventor Nkosana Makate has urged the Constitutional Court (ConCourt) to dismiss the application for leave to appeal lodged by Vodacom last month.

The telecoms operator filed the appeal following the Supreme Court of Appeal (SCA) ruling that ordered Vodacom to determine new compensation for Makate – within 30 days of the order.

In an answering affidavit submitted to the ConCourt this week, Makate notes he opposes Vodacom’s application based on five main reasons.

First, the application fails to meet the jurisdictional requirements for leave to appeal, as it raises no constitutional issue, nor any arguable point of law of general public importance, he states in the 97-page document.

Nor would it be in the interests of justice for the ConCourt to stand in his way of finally receiving his compensation, after a 23-year struggle with Vodacom, he adds.

“Second, the present dispute is a purely private commercial matter in which this court has already found that I am contractually entitled to be paid a share of the revenue generated by my invention. The present issue is about quantifying my share of the revenue – nothing more,” writes Makate in the affidavit.

“Third, Vodacom seeks to characterise what is now nothing more than a factual dispute, as a ‘jurisdictional’ issue. That characterisation, I am advised, is untenable. It holds out the spectre for all disagreements about factual conclusions as going to jurisdiction and hence being matters for this court.”

According to Makate, Vodacom’s stance of not raising factual disagreements resorts to insult and disparagement of the three majority judges who made the SCA ruling, labelling their conclusions as being the product of "ignorance".

Fourth, the factual errors, alleged by Vodacom in its appeal, are not errors at all. The majority's central findings are entirely consistent with the evidence presented. In truth, there was a striking lack of evidence presented by Vodacom, he states.

“Fifth, the contention that the SCA's order is vague is incorrect and based on a blinkered reading of the judgement. Vodacom's application is nothing more than an attempt to dispute factual findings by the SCA majority.”

Detailing the history of the invention, Makate says in March 2001, Vodacom celebrated the launch of a product, then called "Call Me" in the Vodacom internal newsletter, which acknowledged his role in the conceptualisation of the product.

“However, today Vodacom has gone to extraordinary lengths to stymie my legitimate claims. In its dealings directly with me, it has resorted to dishonesty. And in its litigation strategy against me, it has resorted to expediency,” he writes.

Makate, an ex-employee of the telco, and Vodacom have been embroiled in litigation over the ‘Please Call Me’ product for almost 16 years.

In its ConCourt appeal, Vodacom warned of the dire financial implications that could arise from a large compensation payout in the legal matter.

The operator raised concerns that this would also have an impact on its network investment, coverage and social programmes, and the attractiveness of SA as an investment destination,

“The SCA’s order impinges on the Rule of Law in terms of section one of the Constitution of the Republic of South Africa 1996 and deprives the operator of its right to a fair trial under section 34 of the Constitution,” said Vodacom in the appeal.

If Makate has provided the court with new information this week, the ConCourt would then provide Vodacom with 10 court days to submit a replying affidavit, to submit evidence to refute the case made by the respondent in his answering affidavit, according to the Superior Courts Act, 2013.

Vodacom declined to comment on the latest development due to “the confidential nature of the negotiations”.