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Makate to respond to Vodacom in court this week

Sibahle Malinga
By Sibahle Malinga, ITWeb senior news journalist.
Johannesburg, 11 Mar 2024
Vodacom says there is no certainty around what a “fair compensation amount” really is.
Vodacom says there is no certainty around what a “fair compensation amount” really is.

‘Please Call Me’ inventor Nkosana Makate and his legal team are expected to submit an answering affidavit to the Constitutional Court (ConCourt) this week, opposing the relief sought by Vodacom.

This, after Vodacom in the last week of February lodged an application with the ConCourt for leave to appeal the Supreme Court of Appeal (SCA) ruling that last month ordered the telecoms operator to determine new compensation for Makate – within 30 days of the order.

According to the ruling, Vodacom must pay Makate between 5% and 7.5% of the total voice revenue generated by the Please Call Me service, derived from prepaid or contract offerings from March 2001 to March 2021 (18 years), including interest.

It also noted Makate is entitled to 27% of the Please Call Me messages sent daily as being revenue generated by the return calls.

In its ConCourt appeal, Vodacom said 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.

The telco further said that if the SCA judgement is upheld, this would negatively impact its employees, shareholders and the company’s contribution to public finances.

“As a responsible corporate citizen, Vodacom is respectful of the judicial system and abides by the laws of South Africa. Having considered the SCA judgement 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 judgement and order are fundamentally flawed,” stated Vodacom.

“It is apparent from the dissenting judgement of the SCA that the majority judgement overlooked or ignored many of the issues between the parties, and their evidence and submissions relating to those issues."

Vodacom said that as a matter of law, its application for leave to appeal makes several submissions:

  • The SCA misdirects itself by considering and deciding on issues which had not been placed before it for adjudication by either Vodacom or Makate.
  • The SCA selectively chooses to only have regard to Makate’s evidence, as in the case of models for computing compensation payable to Makate, while ignoring swathes of evidence in this regard presented by Vodacom contesting Makate’s version.
  • The SCA orders are unintelligible, incomprehensible and vague, rendering them incapable of implementation and enforcement.

Makate has been given until 13 March to file papers in response to Vodacom’s claims. It is anticipated he will refute these claims and further motivate why the SCA’s order from February should be upheld.

In a statement sent to ITWeb, Vodacom spokesperson Byron Kennedy says: “Since the handing down of the judgement, Vodacom has lodged its application for leave to appeal the SCA’s judgment and order on 27 February 2024. Mr Makate’s reply to Vodacom’s application is due in the course of the week.”

When asked if Vodacom and Makate have been in negotiations, Kennedy responded that he is unable to comment further.

If Makate provides 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.

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

Makate previously claimed Vodacom owes him a settlement of R10.2 billion, which excludes accrued interest and the legal fees incurred.

In 2021, he rejected a R47 million offer and brought an application to the Gauteng Division of the High Court of South Africa to have the Vodacom Group CEO’s determination judicially reviewed and set aside.

Vodacom Group CFO Raisibe Morathi recently said during a media briefing that there is no certainty around what a “fair compensation amount” really is.

ITWeb approached Makate and his legal representatives from law firm Stemela & Lubbe for comment, but was told they are not in a position to respond.