Minister of communications Stella Ndabeni-Abrahams this morning embroiled herself in the ongoing 'Please Call Me' drama between Vodacom and former employee Kenneth Nkosana Makate. For 18 years, Makate has been trying to get compensation for creating the lucrative call-back service.
"Just shut up Vodacom and do the right thing "Talk to Makate" [sic] instead of this poor PR stunt. Don't talk to us until you have reached a settlement with him and his team," the minister said in a now deleted tweet.
She was replying to a tweet from Gauteng MEC for Education, Panyaza Lesufi, who has taken it upon himself to criticise Vodacom over the 'Please Call Me' matter in the last few days.
"We need to stand by Nkosana 'Please Call Me' Makate against this bully called @Vodacom, pay him by month end or face the wrath of the nation. How dare do [sic] you even disrespect court decisions #VodaPayHim," Lesufi tweeted on 12 January.
Vodacom responded to the tweet, saying: "A decision on reasonable compensation payable to Mr Makate, based on the Con Court Order, was recently made by Vodacom Group CEO. This decision has been communicated to Mr Makate and his attorneys. Claims that Vodacom is disrespecting [sic] decision of courts is false & ill-informed."
Lesufi then tweeted again on 13 January: "I've lost respect for your brand. You even use an intern to respond to such a serious matter. I am terminating all the relationships I have with @Vodacom even if it means having a new number. You're a disgrace and greedy."
Deal or no deal
The politicians' involvement was possibly spurred by a post by Makate on Facebook, on Friday 11 January, where he denied that an agreement had been reached after Bloomberg reported that Vodacom would be paying out "reasonable compensation" to Makate and considered the matter as "finally settled and closed".
"I would like to make it very clear that I have not agreed to anything with Vodacom. The amount that the CEO has determined is shocking and an insult. I am currently being advised by my legal team on remedies available to me. Moreover, Vodacom has not apologised for their despicable conduct for the past 18 years as found by the Constitutional Court," Makate wrote on Facebook.
Negotiations between Makate and Vodacom have been going on since 2016, after the Constitutional Court on 26 April 2016 ruled in favour of the former Vodacom employee, finally ending a legal case that had been dragging on since 2008. Vodacom confirmed on 27 May 2016 that negotiations had begun with Makate.
The Constitutional Court ruling said: "Vodacom is ordered to commence negotiations in good faith with Mr Kenneth Nkosana Makate for determining a reasonable compensation payable to him in terms of the agreement."
However, "in the event of the parties failing to agree on the reasonable compensation, the matter must be submitted to Vodacom's Chief Executive Officer for determination of the amount within a reasonable time".
This seems to be the situation that has arisen, as Vodacom says it "considers the matter as finally settled and closed", while Makate says he has not agreed.
"In line with the Constitutional Court Order, the Vodacom Group Chief Executive Officer was directed to determine the amount of reasonable compensation payable to Mr Kenneth Makate for the idea that led to the development of the Please Call Me product, in the event of Vodacom and Mr Makate's negotiating teams failing to reach agreement on the quantum of such reasonable compensation," Vodacom told ITWeb.
"Mr Shameel Joosub, in his judicially determined deadlock breaking role, received oral and written representations from both parties after the negotiations between the two parties had deadlocked. Oral hearings were held on 4-5 October 2018.
"The Group CEO has met with the legal representatives of Mr Makate and Vodacom to convey his decision and determination. Vodacom can confirm that Mr Makate's funds will be transferred as soon as we have the banking account details."
How much Vodacom's CEO decided was reasonable compensation is unclear. Vodacom will not disclose this due to a confidentiality agreement both parties signed as part of the negotiating process.
Makate had originally asked Vodacom for 15% of all 'Please Call Me' revenue, should the product be successful. In 2016, his legal counsel argued that would amount to around R10.5 billion.
Eighteen years in the making
The 'Please Call Me' matter goes as far back as 2000, when Makate, then a trainee accountant at Vodacom, said he came up with the idea for a product that allowed you to ask someone to call you, even if you were out of airtime. He took the idea to Vodacom's then director of product development and management, Philip Geissler, who has since left the company.
"The applicant and Mr Geissler negotiated and agreed that Vodacom would use the applicant's idea to develop a new product which would be put on trial for commercial viability. If the product was successful, then the applicant would be paid a share in the revenue generated by it," the Constitutional Court ruling reads.
After subsequently leaving Vodacom and receiving no compensation for the idea, Makate began his legal battle in 2008. In July 2014, the South Gauteng High Court found Makate had proven the existence of a contract. However, the High Court ruled Vodacom was not bound by that contract because Geissler did not have authority to enter into any such agreement on the company's behalf.
The High Court and Supreme Court of Appeal also later turned down Makate's application to appeal the decision. However, the Constitutional Court, in September 2015, heard Makate's appeal in this regard and on 26 April 2016, set aside the High Court's previous decision and replaced it with an order that Vodacom negotiate with Makate in terms of compensation.
The Constitutional Court ruled Vodacom was bound by the agreement concluded by Makate and Geissler.
Former Vodacom CEO Alan Knott-Craig previously claimed he invented the concept himself while watching two security guards trying to communicate via missed calls. The court, however, found Knott-Craig and Geissler "created a false narrative pertaining to the origin of the idea" on which the 'Please Call Me' product was based.
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