Court cuts off inventor of Please Call Me

Nkosana Makate, who invented the Please Call Me concept, says he is baffled by a high court refusal this week to let him appeal against an earlier judgment in favour of Vodacom, the company he accuses of stealing the idea from him.

But a determined Makate said his legal team would work throughout the holiday break to prepare an application to be submitted directly to the Supreme Court of Appeal, bypassing the step of petitioning the latest court decision.

If that court refused, he would approach the Constitutional Court on the basis that the agreement with Vodacom was negotiated in good faith.

"This is really about a contractual arrangement. There is a contract and that needs to be honoured," he said, following Thursday's outcome at the Johannesburg High Court.

If he wins on appeal, Vodacom will be forced to enter into negotiations about remuneration.

Makate previously asked Vodacom to pay him 15% of the proceeds from the concept, which enables a cellphone user without airtime to request a return call from another user.

Makate, backed by litigation funders Sterling Rand, said that in the Appeal Court his team would probably draw on a previous KPMG audit report on allegations of corruption and nepotism, among other things, that Vodacom prevented from being made public. This document, he said, might give details about who owns the patent to his invention and where it is held.

"We're feeling strong that [Judge Phillip] Coppin has made serious errors in the judgment," he said.

The judge ruled on the issue in July and Makate's team, led by Cedric Puckrin, failed to convince him to change his ruling. Coppin did not grant reasons and referred to the earlier judgment.

Makate, formerly a junior accountant at Vodacom, gave his idea for Please Call Me to his employers in 2000 on the condition that he would be fairly remunerated.

Then head of product development Philip Geissler promised to negotiate if the idea was found to be technically and commercially viable. In return, Makate could not disclose the idea to a third party.

Vodacom launched the product in March 2001, meaning that the condition of technical feasibility was fulfilled. In court, Vodacom said it could not prove commercial viability.

Vodacom denied that Geissler had the authority to bind the company to an agreement or that he had the ostensible authority to do so. It said it did not enter into revenue-sharing agreements with employees.

Makate's team argued that Geissler, as a board member, had the authority to act.

The judge found there to be a contract between the parties, but the three-year prescription period when Makate could have claimed compensation had lapsed.

Coppin also found previously that Makate had not sufficiently proved Geissler's ostensible authority - a representation by words or conduct. There was also no evidence that the board was aware of the details between Makate and Geissler.

But a former manager and supervisor of Makate, Lazarus Muchenje, testified that while he was at Vodacom there was competitive pressure to be first to market, so a lot of reliance was placed on trust.

Former Vodacom CEO Alan Knott-Craig was in all probability aware that the product emanated from the plaintiff and that he wanted to be remunerated, the judge said. Knott-Craig in his book Second is Nothingclaimed responsibility for the invention, but in court his version could not stand.

The judge found there to be some collusion between Knott-Craig and Geissler, based on e-mail correspondence. Geissler was never called as a witness, perhaps to prevent weakening Vodacom's case, he said.