For Please Call Me inventor Nkosana Makate, the time for talk with Vodacom is over and he now wants a judge to step in and make the call on how much the mobile giant owes him for his brainchild.
In 2016 – on the back of what was at that time already a protracted legal battle – the Constitutional Court (ConCourt) ordered Vodacom to negotiate a “reasonable compensation” with Makate.
But five years on, the two are still at loggerheads over what exactly a “reasonable compensation” is – with Makate’s lawyers describing the latest offer of R47 million as but “a fraction of the billions and billions of rands that Vodacom has raked in from the idea”.
So now Makate has gone back to court in the hopes of getting a judge to make the decision.
He has brought an application not only to review the R47 million offer but to substitute it with one he believes should be closer to R10 billion – plus interest.
The courts are generally wary of handing down substitution orders but when the case came before Judge Wendy Hughes in the North Gauteng High Court on Tuesday, Makate’s legal team argued there were “exceptional circumstances” at play.
Gilbert Marcus SC – one of the three senior advocates arguing his case – pointed to, among others, “the sheer history and duration of the matter” and emphasised “the need for the matter to be brought to finality”.
“The saga has now been going on for more than 20 years,” Marcus said – accusing Vodacom of either trying to deprive Makate “of any entitlement at all” or “ leave him with the absolute minimum possible”.
In the alternative, Makate is willing to accept an order remitting the decision back to Vodacom chief executive officer (CEO) Shameel Joosub – subject to “very strict” guidelines being attached.
Makate came up with the concept behind the Please Call Me service in 2000 while he was working as a trainee accountant at Vodacom but he wound up having to go to court in order to be officially recognised as the inventor after former Vodacom chief executive Alan Knott-Craig tried taking the credit in his 2009 autobiography Second is Nothing.
The case eventually landed up in the ConCourt – which ultimately found in Makate’s favour and handed down the order for Vodacom to negotiate with him.
The ConCourt did, at the time, consider the possibility that the negotiations might prove unsuccessful – which is what ended up happening – and ordered in that case, the CEO of Vodacom was to step in and make a “determination of the amount within a reasonable time” – which, again, is what ended up happening. But the issue in question now is how he arrived at the figure of R47 million.
Makate’s legal team has put forward a raft of grounds to review the offer – including questions around the time period over which he is owed a share of the revenue Vodacom generated from the Please Call Me service; the interest due to him; the revenue model used; as well as what they describe as Vodacom’s “refusal” to disclose the revenue generated from the service.
The company has previously claimed it was unable to do so but former employees have since filed sworn statements with the court detailing how an exercise to establish this figure was already carried out back in December 2015.
The hearing is expected to span the better part of this week and has been set down until Thursday.