Faced with a collective legal bill of nearly R13 million for one day’s arguments in the Constitutional Court, which was not even brought to the apex court by himself, Nkosana Makate and Vodacom will next month again face each other in the Supreme Court of Appeal over the Please Call Me (PCM) invention.
Awaiting justice for more than two decades, Makate’s legal battles continue. While he accepts the verdict of the Constitutional Court issued earlier this year that the matter must return to the SCA, Makate questions why he was slapped with a costs order.
“I do not agree with the awarding of costs in favour of Vodacom. During the same Constitutional Court process, I had to defend two Amicus Curiae applications – one from Vodafone and another from Yebo Yethu. These are shareholders of Vodacom. The Constitutional Court dismissed both, but did not award me costs”.
Makate questioned the apex court upholding Vodacom’s application for leave to appeal, while blaming the SCA judges for a mistrial. “Surprisingly, it awards costs against me while referring the matter back to the SCA for a new hearing. This is hugely perplexing and contradictory and will send a chilling message to a small man in litigation against giants like Vodacom.”
Makate, who is set on fighting the costs order against him, meanwhile believes the SCA will bring finality to this matter once and for all and still has faith in the judiciary.
The fresh 18 November SCA case comes nearly 25 years to the day since PCM was invented on 21 November 2000. This is after the ConCourt referred the matter back to the SCA for a new hearing by different judges. It ruled that the SCA had made a number of legal errors and exceeded its jurisdiction.
In February 2024 the SCA ruled Vodacom should pay Makate between 5% and 7.5% of revenue generated over the past 18 years. Vodacom appealed this decision to the ConCourt.
The SCA will, however, now have to re-evaluate the compensation amount. Vodacom’s earlier offer of R47 million – by which it still stands and regards as generous – was determined by its CEO in 2016.
“The R47 million is a very large award for an idea which was brilliant at conception but soon became public property and lost all market value,” Vodacom said in its new papers filed with the ConCourt.
Makate all along rejected the R47 million offer and maintains Vodacom should compensate him as if he had an 18-year contract with them for the use of what is agreed to be a genius invention.
The cellphone giant, on the other hand, argues that he should be compensated for only five years and said it would have never entered into an 18-year contract with him.
The calculations turn around what a 5% revenue for Makate would mean in monetary terms. In terms of his calculations, based on what he believes is an 18-year contract, he should be compensated between R28 billion and R110 billion, Makate argues.
Vodacom now says that the invention was “brilliant” but only had commercial value for a period of two months: from 21 November 2000 to January 2001 when MTN launched its similar product.
But Makate says this argument is flawed based on Vodacom’s own evidence as well as expert evidence. According to his argument, it is also irrelevant, because the CEO determined that he was entitled to 5% of the revenue generated by PCM.
The R47 million awarded by the CEO is a fraction of the actual 5% share that the CEO found he is entitled to. It is also a fraction of the billions of Rand that Vodacom has raked in from his invention since February 2001, Makate argues.
