'Please call me' battle to be fought in highest court

23 July 2015 - 12:30 By Ernest Mabuza

Former Vodacom employee Nkosana Makate now has to convince the Constitutional Court why he must be paid for coming up with the “Please Call Me” idea. The court will hear Makate's case‚ in which he is claiming millions of rands from the company for his contribution in developing the popular “Please Call Me” concept‚ in September.Both parties recently filed papers stating their case with the court.Makate hopes to convince the court that Vodacom’s then director of product development‚ Philip Geissler‚ had ostensible authority to enter into an agreement with him on behalf of the company.Makate claims that the “Please Call Me” service was based on his idea‚ and he is entitled to a payment in accordance with an oral agreement he concluded with Geissler in November 2000.The service‚ introduced by Vodacom in February 2001‚ allows prepaid cellphone users to send a message to other users asking to be called.Last year‚ the high court in Johannesburg dismissed Makate’s claim. It found that although he had‚ on a balance of probabilities‚ entered into an agreement with Geissler‚ he could not prove to the court that the agreement was binding on Vodacom. The court also found that the claim had prescribed.In terms of the Prescription Act‚ a claim is said to have prescribed or to have been extinguished after a period of three years from the date upon which it arose.In written submissions to the Constitutional Court filed earlier this month‚ Makate’s lawyers said the evidence before the high court made it clear that Geissler had acted with the necessary ostensible authority to bind Vodacom.They also disputed the high court’s conclusion that the claims had prescribed‚ because the company had not informed Makate that the condition for his compensation had been satisfied.They argue that even if prescription commenced in 2001‚ this case involved a “continuous wrong”‚ because Vodacom continued to derive further revenue from the “Please Call Me” product. The company remained obliged to pay Makate a revenue share‚ they said.However‚ Vodacom in its papers before the court claimed that the application bore no prospects of success‚ as Makate was now raising “constitutional issues” he had not raised before‚ and this was not permitted.The company argues that the “Please Call Me” idea‚ which contributed to the final product‚ was already known to its competitor MTN before Makate disclosed it to Vodacom.“The issue in the case was not whose idea the Please Call Me product was; the real issue was: did Mr Geissler undertake to monetarily reward the plaintiff and‚ if so‚ did he have the authority to do so?”The advocates for Vodacom said on the facts of the case‚ although Geissler was a director of Vodacom‚ he did not have the authority to bind the company to any agreements.Vodacom said on Makate’s own version‚ he knew that his idea had become commercially viable by February 2001 but only served summons to claim the debt in July 14 2008‚ after it had long prescribed. - TMG Courts and Law

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