Vodacom this week urged the Constitutional Court (ConCourt) to overturn the Supreme Court of Appeal (SCA) ruling, which set aside the CEO’s R47 million compensation offer to Please Call Me (PCM) inventor Nkosana Makate.
The mobile operator told the ConCourt it is in the interests of justice for leave to appeal be granted. It said the SCA majority judgement infringes the rule of law under section 1(c) of the Constitution and on Vodacom’s right to a fair trial under section 34.
This, after Vodacom in February lodged an application with the ConCourt for leave to appeal a previous ruling by the SCA.
The leave to appeal came after the mobile operator in February suffered another loss in the legal battle, when Vodacom Group CEO Shameel Joosub was ordered to determine new compensation for Makate.
Speaking before the court yesterday, advocate Wim Trengrove, legal counsel for Vodacom, explained the matter fell beyond the SCA’s jurisdiction. He said the court didn’t have the power to overturn the CEO’s determination, nor did it have the power to make a re-determination.
“Vodacom appealed against the SCA judgement, not only on the basis that the terms of the referral were incorrect, but it fundamentally appealed against that judgement on the basis that the CEO’s determination should not have been overturned at all, or that if referred back, it should have been referred back in different terms.
“Mr Makate did not appeal, and in those circumstances, the question before the SCA was whether Vodacom was correct in saying the determination should not have been overturned at all, or not. If it was correctly overturned, the terms on which the matter was referred back to the CEO was a fundamental failure of justice, as the court failed to recognise the evidence before it.”
According to Trengrove, Joosub’s offer was fair and reasonable, and it has always been Vodacom’s case that “as a matter of fact, there is no direct revenue attributable to the PCM – which is a non-billable service – and there is therefore no accurate methodology to determine indirect revenue”.
There is a question on whether the SCA’s order should be set aside and replaced by a completely different order, Trengrove added.
Makate, a former Vodacom employee, reportedly came up with the idea for the PCM product in 2000.
The litigation began in 2008, when Makate took the matter to the High Court, after writing numerous letters to Vodacom in 2007.
Makate previously claimed Vodacom owes him a settlement of R10.2 billion, which excludes accrued interest and the legal fees incurred.
In 2021, he rejected a R47 million offer and brought an application to the Gauteng division of the High Court of South Africa, to have the Vodacom Group CEO’s determination judicially reviewed and set aside.
Makate's lawyer, advocate Stuart Scott, told the ConCourt that Vodacom has been making billions in revenue from Makate, noting it can afford a reasonable compensation in line with the SCA ruling.
He also accused Vodacom of not being honest with its finances and revenue collection.
“Makate is in court this morning and he's now 48 years old. He is still waiting for his compensation from Vodacom, and they have been using his invention for 24 years. The SCA was well within its right on the price determination review, as the CEO's determination failed to pass the test, as a legal argument,” Scott said.
The Constitutional Court has reserved judgement in the matter.
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