How Please Call Me’s Nkosana Makate got screwed, again

2014-07-06 15:01

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The inventor of the Please Call Me, Nkosana Makate, is headed for Bloemfontein after losing the first round of his legal battle with Vodacom.

The South Gauteng High Court this week dismissed Makate’s high-profile court bid to get paid millions for the invention of the now ubiquitous service while working at Vodacom in 2000.

If nothing else, this first legal defeat has finally discredited former Vodacom CEO Alan Knott-Craig’s long-standing claim to have invented the Please Call Me himself.

The evidence in the case, and the judgment, leave little doubt that Makate conceptualised the business model for which Vodacom then designed a technical solution.

Makate had originally called it the “buzz option”, with Vodacom subscribers “buzzing” each other in the way the Please Call Me would eventually work.

Internal Vodacom newsletters from 2001 even congratulated him for his contribution.

Seemingly irrefutable evidence like this has done serious damage to Knott-Craig’s image as a technology pioneer.

He was the only witness called by Vodacom and Judge Phillip Coppin laid into his “nonsensical” testimony about how he allegedly came up with the idea

of the Please Call Me in a flash of illumination on his office balcony.

Makate was upbeat this week despite the defeat. The appeal is already being prepared, he told City Press.

He was “quite surprised” at the dismissal and speculated that even Vodacom was probably surprised.

“The merits were all on our side,” he said about the judgment.

The claim failed on two technical points that Makate believes his lawyers will deal with.

Makate’s claim to have an oral contract entitling him to benefit from his idea is based on conversations with Vodacom’s then head of product development, Phil Geissler.

The court found that Geissler, despite being a senior figure at Vodacom, did not necessarily have the authority to make oral contracts on Vodacom’s behalf.

But that was not the problem.

The case was dismissed because of the way in which Makate’s lawyers chose to argue that Geissler had “ostensible authority” to make an oral contract, not really whether or not he actually did.

The second point against Makate was the period it took him to pursue a claim against Vodacom.

He invented the Please Call Me in 2000 and Vodacom launched it in 2001. The first written claim on the company was only made in 2007.

The claim, which can be seen as a “debt”, is thus prescribed, according to the judge.

Makate disagrees on the basis that his claim is not for the settlement of a “debt”, but for the recognition of his oral contract. After that, he and Vodacom can talk money, goes the argument.

“The plan was to file it before the end of the week,” he said of the appeal.

The case is being financed by Sterling Rand, a Sandton-based company that finances claims in exchange for a cut of the eventual settlement.

It takes on all the risk, including the cost order made against Makate this week.

Makate’s contract with Sterling makes provision for appeals all the way to the Constitutional Court, if the imminent appeal to the Supreme Court of Appeal in Bloemfontein fails, he said.

No firm rands-and-cents figures have been put forward for the eventual amount Vodacom could be sued for, but Makate had initially demanded 15% of the money made from “induced” calls as well as the advertising income that the free messaging service has brought in since 2001.

Back in 2007 when he first wrote to Vodacom demanding payment, Makate also said that as an alternative, a once-off payment of R500?million would be in order.

That figure was a pure “thumb suck”, he said.

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