‘Please Call Me’ inventor Nkosana Makate has argued before the Constitutional Court that following the Supreme Court of Appeal’s February 2024 majority judgment he is entitled to R9.4 billion in compensation from Vodacom for his invention. Picture: Jacques Naude/Independent Newspapers
PLEASE Call Me inventor, Nkosana Makate, has told the Constitutional Court that claims that he wants an exorbitant payout from Vodacom as compensation for his invention do not represent reality.
Vodacom and Makate will be back at the apex court later this month as the country’s largest mobile network operator continues attempts to avoid paying what it claims could be between R29 billion and R63bn to Makate as compensation for his idea.
However, Makate’s advocates state that: “In any event, the entire interests of justice section states that Vodacom will suffer a series of ill effects if the majority order (three out of five judges) is imposed and if the amount of the quantum is in the order of R40bn.”
In the heads of arguments filed on October 18, Makate said underneath that amount, Vodacom would not suffer any drastic effects.
”But the quantum, as Makate stated on oath before this court (Constitutional Court) in his answering affidavit, while still substantial, is an order of magnitude less – at R9.4bn,” he said.
According to the inventor, it is opportunistic that Vodacom should seek to raise its “concern” on the effect that the Supreme Court of Appeal’s (SCA’s) order would have on its black-economic empowerment partner, Yebo Yethu.
Makate said for the last 24 years Vodacom had attempted to escape paying a contractual debt to him as its contractual partner in a contract whose terms were proved in the trial court, and those factual findings were not interfered with by the Constitutional Court in its 2016 judgment declaring him the inventor of the product and that he should be compensated.
He added that Vodacom, a company now worth R200bn, is also financially backed by an even larger giant from England, Vodafone’s 65% shareholding, which means that it is extremely unlikely that the payment of R9.4bn would lead to Vodacom’s demise.
In his submission, Makate said Vodafone has had no difficulty in settling prior disputes for amounts equal or beyond what Makate is owed under the SCA’s order.
”Vodacom did not plead in its answering affidavit that the payment it would be required to make would have a substantial or devastating impact on it … the figures of R65bn are, with respect, entirely sensational,” read the papers.
Vodacom further said that a payment of R40bn would negatively impact it, but the amount due to Makate under the majority of the SCA’s order is substantially less than R40bn.
”It also demonstrates the huge amounts of revenue that Vodacom generates and that Vodacom is entirely capable of paying the amounts due in Makate’s claim as ordered by the majority of the SCA,” he said.
The apex court has been told that Vodacom pays dividends annually to shareholders of between R13bn and R14bn and that, even separately, the company has sufficient funds available to spend a further R12bn a year (or R60bn over five years) in network investment.
”The payment of Makate’s claim would plainly not be the demise of Vodacom or its partners. At best, it might mean that Vodacom delays its ‘commitment’ to improving its network for one year,” the papers further state.
In addition, court orders in commercial matters often pertain to amounts of money that are significant.
”Moreover, Vodacom almost certainly would have undertaken insurance for the liability owed to Makate, and indeed, if it did not do so, then Vodacom’s shareholders may well have remedies against Vodacom’s directors for failing in their fiduciary duties,” the lawyers said.
Vodacom wants to overturn the SCA majority judgment handed down in February this year confirming North Gauteng High Court Judge Wendy Hughes’ February 2022 ruling ordering the company to make a new determination and not the R47m it offered Makate after the Constitutional Court ordered that the accountant be recognised as the inventor of Please Call Me in April 2016.
Judge Hughes ordered that Vodacom chief executive Shameel Joosub was obliged to make a fresh determination that Makate is entitled to be paid 5% of the total revenue generated from the Please Call Me product between March 2001 and March 2021.
Vodacom has complained that the majority SCA judgment (three judges) would entitle Makate to an amount between R29bn and R63bn while the minority decision (two judges) would increase the R47m to about R186m.
Additionally, Vodacom has told the apex court that in one of his computation models, Makate claimed compensation of between R29bn and R126bn and that his calculations were grossly exaggerated.
According to the company, one of its experts, in assessing reasonable compensation for ideas similar to Makate’s in what he described as a “hypothetical marketplace of ideas”, estimated the range of compensation to be between R17m and R25m at a maximum, which Vodacom states demonstrates the reasonableness of Joosub’s R47m, which it also added was “generous”.
Vodacom wants the SCA’s order set aside and replaced with one that upholds its appeal and replaces Judge Hughes’ ruling with a decision that Makate’s application is dismissed with costs.
In the alternative, Vodacom wants the matter referred back to the SCA for a fresh hearing of its appeal by a differently constituted bench.
Vodacom has previously described Makate as then a young trainee accountant at Vodacom who came up with the genius invention, which the company – at the time – described as “a world first” and recognised that it was all “thanks to Makate”.
He insisted that he was promised compensation in the form of a share in revenue.
Makate invented ‘Please Call Me’ when he was 24; he is now 48.
”I have spent half of my life involved in this dispute with Vodacom and am yet to be paid anything,” he said.
The matter will be heard on November 21, exactly 24 years after Makate first presented his Please Call Me invention to Vodacom.
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