“Please Call Me” inventor Nkosana Makate and Vodacom’s legal battle for compensation is set to drag on after the Constitutional Court referred the dispute back to the Supreme Court of Appeal (SCA), saying it was unhappy with its ruling.
The case, one of the most high-profile intellectual property disputes in SA, is set to continue in court for much longer and will mean millions of rand more in legal fees for Makate and Vodacom.
In a unanimous ruling read by acting deputy chief justice Mbuyiseli Madlanga — his last in the Constitutional Court before he goes on retirement — the top court also ordered that a different panel of judges hear it in the SCA.
The SCA judgment had set aside a R47m offer that Vodacom CEO Shameel Joosub made to Makate six years ago and that Makate rejected.
It ordered Vodacom to pay Makate 5%-7.5% of the total voice revenue generated by the service over 18 years from March 2001 to March 2021, plus interest.
Makate has been in court since 2008 when he took Vodacom to court, seeking acknowledgment for the invention and a fair compensation for the service that has generated billions for the company.
Eight years later, in 2016 he won a significant victory in the Constitutional Court when it ruled in his favour, acknowledging him as the creator of the “Please Call Me” service and ordering Vodacom to enter into negotiations with him for reasonable compensation.
Since then the two parties have been in and out of courts haggling over the “fair” compensation.
Vodacom said it was pleased with the court’s referral of its case back to the SCA.
Reacting to the court’s decision in a brief statement, the company said: “Vodacom is pleased that the Constitutional Court has upheld its appeal, with the case referred to a new panel of the Supreme Court of Appeal.”
Vodacom said it would “now review the judgment in full and take appropriate next steps”.
Reacting to the ruling, Makate said the top court could have finalised his protracted legal battle for compensation.
“I think the Constitutional Court should have probably finalised the matter.”
He said he remained resilient and hoped the SCA would provide a favourable judgment.
“Obviously we expected a different decision. We have to abide by the court’s decision and we are going back to the SCA because they [the Constitutional Court] have said the SCA must apply themselves properly,” Makate said.
Delivering the unanimous judgment, Madlanga said aspects of how the SCA judgment dealt with the case were difficult to understand.
Madlanga said the SCA did not consider Vodacom’s evidence that sought to show that Makate’s calculation of what he was entitled to may have been incorrect.
“Everything about Vodacom’s case was about demonstrating that Mr Makate’s computation was wrong. So there was evidence that sought to demonstrate … whether or not Vodacom would have succeeded in this regard is something else,” Madlanga said.
He added that the point was that the SCA “did not consider this evidence at all”.
The apex court ordered that the matter be heard by a differently constituted panel in the SCA in Bloemfontein.
“This judgment merely highlights the fatal shortcomings in the SCA judgment. It does not make its own decision in any of the appellants’ issues. Those are the very issues that ought to have been decided by the SCA,” Madlanga said.
He said the just and equitable remedy was that the appeal be decided on its merits by the SCA.
TimesLIVE
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.