Nkosana Makate says after 24 years — half of his life — of dispute with Vodacom and its attempts to frustrate and delay payment to him, it is appropriate that the Constitutional Court ends this matter by dismissing the cellphone giant’s leave to appeal.
Makate made this submission in papers submitted to the apex court on Monday, where he is opposing Vodacom’s application for leave to appeal a Supreme Court of Appeal (SCA) judgment passed in February, which ordered the cellphone giant to to make a fresh determination to compensate Makate for his “Please Call Me (PCM)” invention.
The SCA set aside the R47m offer Makate rejected in January 2019.
In its application for leave to appeal, Vodacom said the impact of the SCA judgment would be vast and wide-ranging on Vodacom, as well as the attractiveness of South Africa as an investment destination. It said the judgment negatively affected its employees, shareholders and Vodacom’s contribution to public finances.
I was 24 when I invented PCM. I am now 47. I have spent half of my life involved in this dispute with Vodacom and am yet to be paid anything
— Nkosana Makate, 'Please Call Me' inventor
Vodacom also said SCA orders were “unintelligible, incomprehensible and vague, rendering them incapable of implementation and enforcement”.
In his answering affidavit, Makate gave five reasons why Vodacom’s application should be dismissed:
- the application raised no constitutional issue nor any arguable point of law of general public importance;
- the present dispute is a purely private commercial matter in which the ConCourt has previously found Makate was contractually entitled to be paid a share of revenue generated by his invetion “my invention”;
- Vodacom resorted to insulting and disparaging the three majority judges in the SCA, labelling their conclusions as being the product of “ignorance”;
- the alleged factual errors were not errors at all and the majority’s central findings were entirely consistent with the evidence presented; and
- the contention that the SCA’s order is vague is incorrect and based on a blinkered reading of the judgment.
Makate said in March 2001 Vodacom celebrated the launch of a new product, then called “Call Me”, in the Vodacom internal newsletter where it said: “Vodacom has launched a new product called 'Call Me', thanks to Kenneth Makate from the finance department. Kenneth suggested this service to the product development team, which immediately took up the idea.”
Makate said Vodacom had profited from “Please Call Me” since the day it was launched 23 years ago, helping to make it one of the most profitable public companies in South Africa, worth R200bn. “But Vodacom’s glowing praise and recognition for my invention, and my contribution’s success, stopped soon after this newsletter.
“I was 24 when I invented PCM. I am now 47. I have spent half of my life involved in this dispute with Vodacom and am yet to be paid anything.”
Makate said in 2016 the ConCourt found he had a contract with Vodacom and the court’s order required that he be paid a “share in the revenue generated” by PCM, which has generated billions of rand for Vodacom.
He said the court ordered Vodacom to negotiate with him in good faith to determine his share of the revenue.
Makate said the negotiations broke down and Vodacom CEO Shameel Joosub was called upon to act as a deadlock-breaker. Makate said the CEO exercised his discretion and found that he should be paid 5% of revenue generated from PCM.
Makate said Vodacom did not plead that the payment it would be required to make would have a substantial impact on it.
Makate said Vodacom explained that a payment of R40bn would negatively affect Vodacom, “but the amount due to me under the majority of the SCA’s order is substantially less than R40bn”.
He said Vodacom was entirely capable of paying amounts due in his claim as ordered by the SCA, as the company paid dividends annually to shareholders in the amount of R13bn to R14bn and also had sufficient funds available to spend a further R12bn per year on network investment.
The payment of his claim would not mean the demise of Vodacom or its partners, Makate said; it might mean that Vodacom delays its “commitment” to improving its network for one year.
“I have always been open to discussions,” he added.
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