Vodacom files leave to appeal ‘Please Call Me’ matter in ConCourt

Vodacom filed a leave to appeal application in the Constitutional Court against the Supreme Court of Appeal (SCA) judgment in the “Please Call Me” matter.

The cellphone giant confirmed this on Wednesday, weeks after it stated its intention to do so after the SCA ordered it to make a fresh determination within 30 days to compensate Nkosana Makate for his invention, as it set aside the R47m offer he rejected it in January 2019.

“As a responsible corporate citizen, Vodacom is respectful of the judicial system and abides by the laws of South Africa. Having considered the SCA judgment and order, it is Vodacom’s view there are key aspects of this matter which do not accord with the spirit of the law and that the judgment and order are fundamentally flawed.

“It is apparent from the dissenting judgment of the SCA that the majority judgment overlooked or ignored many of the issues between the parties and their evidence and submissions relating to those issues,” the company said.

The submissions are that: 

• the SCA’s order “impinges on the rule of law in terms of the constitution of the Republic of South Africa and deprives Vodacom of its right to a fair trial under the constitution”;
• the court misdirected itself by considering and deciding on issues which had not been placed before it for adjudication by either Vodacom or Makate;
• the SCA selectively chose to only have regard to Makate’s evidence, as in the case of models for computing compensation payable to Makate, while ignoring swathes of evidence in this regard presented by Vodacom contesting Makate’s version, and;
• the SCA orders are “unintelligible, incomprehensible and vague, rendering them incapable of implementation and enforcement”.

“The impact of the SCA judgment, should it be upheld, would be vast and wide-ranging on Vodacom as well as the attractiveness of South Africa as an investment destination. It would negatively impact our employees, shareholders and Vodacom’s contribution to public finances.

“It would also have an impact on our network investment, coverage and social programmes. Vodacom has previously negotiated with Makate in an attempt to agree reasonable compensation payable to him. These efforts, to date, have unfortunately failed.”

The company said it remained open to “constructive dialogue and good faith negotiations” and to agree to a “fair and reasonable” amount as compensation.

In April 2016, the Constitutional Court ruled Vodacom was bound to an agreement Makate had with the company’s then director of product development Phillip Geissler.

The court ordered Vodacom to begin negotiations with Makate for a reasonable payout to compensate him. Makate initially demanded 15% of the “Please Call Me” proceeds.

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