Please Call Me tussle resumes after failed court bid

Vodacom will resume negotiations with Nkosana Makate over compensation for the Please Call Me idea, the cellular giant confirmed this week after the Constitutional Court dismissed an application seeking clarity on a previous ruling.

Vodacom spokesman Byron Kennedy said the dismissal meant that "good-faith negotiations have to resume determining reasonable compensation for Mr Makate's idea that led to development of the Please Call Me product".

Makate, who has to pay the costs of the failed application, said this week that the application had not been in vain because now "we will resume talks as assumed under oath on revenue share, and they [Vodacom] will avail us records. These are the things they did not own up to behind the scenes."

In April last year, the Constitutional Court ruled that Vodacom must enter into negotiations to determine reasonable compensation for Makate, on whose idea the Please Call Me product is based.

The negotiations deadlocked and, in court papers, Makate said Vodacom had withheld records and other information that would assist his negotiators.

But in his affidavit, Vodacom's chief of legal and regulatory affairs, Nkateko Nyoka, denied that the company was being obstructive. He said Vodacom did not have the records showing how much revenue was generated by Please Call Me, because the product was not reflected as a revenue-generating product on Vodacom's income statement.

This is despite a claim in former CEO Alan Knott-Craig's biography, Second is Nothing, that 20million Please Call Me SMSes were generated daily, resulting in hundreds of millions of rands in revenue. The book was published in 2009.

Makate said on Wednesday: "Now that they [Vodacom] are on oath [agreeing to negotiate] I can hold them to talks. At least now we can start to talk serious business. Not that thing that we had last time of people being oblivious to the judgment."

On February 8, the court dismissed Makate's latest application for clarity on the April judgment.

This was an attempt to resolve the impasse over how the parties should proceed with negotiations. But the 11 judges who considered the application dismissed it, with costs against Makate, and said: "The Constitutional Court has considered this application. It has concluded that the application should be dismissed as it bears no prospects of success."

This week, in a letter dated February 15 and addressed to Vodacom attorney Leslie Cohen, Makate's attorney, Wilna Lubbe, said she was obtaining dates for further discussion from Makate's team of negotiators.

"We accept that the negotiations will include the methodology of revenue share as confirmed in paragraph 22 of the affidavit by your Mr Nyoka, as well as access to the Please Call Me records of Vodacom."

Kennedy said a date for negotiations to resume had not yet been set. "We hope that the resumption of talks will take place as soon as practicably possible."

In 2000, Makate approached his superiors at Vodacom with his idea of sending a message from a cellphone that had run out of airtime to another cellphone user, requesting a return call. He was then a junior accountant.

Vodacom allegedly reneged on promises its former head of product development, Philip Geissler, made to compensate Makate. After repeated attempts to hold Vodacom to the verbal contract, Makate sued the company.