He has agreed to freeze 40% of his Vodacom settlement until the court hears the case.
The Please Call Me inventor Nkosana Makate has agreed to freeze 40% of his Vodacom settlement until the court decides whether he is liable to pay it to British Virgin Islands company Black Rock Mining.
Black Rock Mining is the company asking Makate to pay it 40% of the Vodacom settlement because of an agreement in 2011 to have the company fund the litigation. This was when Makate was gearing up to fight Vodacom for revenue made from Please Call Me and he needed to be backed financially.
Makate’s settlement is estimated to be around R660 million and Black Rock Mining believes it is entitled to R264 million of that money.
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Makate’s agreement with funders
Business Day reported Makate and Black Rock’s attorneys agreed a deal on Monday evening. They were scheduled to appear in the High Court in Johannesburg on Tuesday to argue whether Black Rock Mining should be paid the 40%.
Black Rock initiated the urgent court application last week seeking the court to halt Vodacom from paying the settlement into any account other than Makate’s attorneys Stemela & Lubbe’s trust account.
In addition, the application sought the court to order Makate’s attorneys to withhold 40% of his payout pending finalisation of the litigation relating to whether Black Rock Mining is entitled to such a payout.
Makate to get his money
The urgent court application stood in the way of Vodacom from paying Makate his settlement until the matter between him and Black Rock Mining was resolved. However, this is not the case anymore due to the interim agreement between the two.
Advocate Nazeer Cassim, on behalf of Black Rock Mining, told the court on Tuesday the two parties reached an agreement and submitted a draft order. The order details that Makate has agreed to withhold 40% of his settlement pending the litigation hearing in December.
“Pending the hearing and determination of this application in the week of December 2, the second respondent [Stemela & Lubbe], as attorney of record of the first respondent [Makate], shall hold 40% of the total proceeds received on behalf of the first respondent from the third respondent in settlement of the first respondent’s claim in the so-called Please Call Me litigation, in its trust account,” the agreement reads.
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Terms and conditions of the agreement
The agreement further details that should the application to be heard next month be postponed, struck off the roll for lack of urgency or dismissed, the obligation to retain 40% of the proceeds shall be discharged.
Judge Fiona Dippenaar confirmed the order after consent from both parties. Advocate Reinard Michau, on behalf of Makate, confirmed the parties had reached an interim agreement. That agreement remains in force pending determination of Black Rock Mining’s entitlement to the funds in question to be heard on the week of December 2.
The application by the foreign company is opposed.
‘most unfortunate incidents’
Makate has described his meeting with Black Rock in 2011 as one of the “most unfortunate incidents” of his life. Errol Elsdon, Black Rock’s former director, said in his affidavit that he was introduced to Makate in November 2011 by the late Christian Schoeman.
“Schoeman informed me that Makate was in need of financial support for his litigation against Vodacom, which had been dragging since 2008. I informed Schoeman that I would be interested to put together funding for the litigation.
“On 7 November 2011 in Pretoria, Mr Schoeman, acting for a company to be formed and Mr Makate, representing himself, concluded a written funding agreement for the company to fund his legal costs.
“Where the matter is settled by negotiation and agreement, neither Makate nor the attorneys would be entitled to effect settlement without the written consent and approval of the company, unless the amount payable in terms of such settlement agreement exceeded R650 million,” read the papers.
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