- "Please Call Me" inventor Nkosana Makate says the upcoming High Court review of his case is about correcting mistakes that Vodacom made in arriving at its proposed R47 million compensation figure.
- He accuses the company of not being fully transparent in its negotiations with him.
- An intellectual property law expert says proving the quantum of damages is usually a difficult task.
After more than a decade of fighting Vodacom, the country's biggest cellular company, the inventor of "Please Call Me" is hopeful that his protracted legal battle is now entering its last stretch.
In May, Nkosana Makate will once again square off against Vodacom in a review of R47 million in compensation offered to him by the company for the popular messaging model he came up with in 2000 when he was employed there.
A bruising legal battle with the company has played out in all the country's courts over the years, pitting the accountant against the cellar giant, which has operations spread across the continent, with a market capitalisation of R236.8 billion.
"The finish line is on the horizon," said Makate about the impending High Court review of the compensation set by current Vodacom CEO Shameel Joosub.
Vodacom came up with the R47 million payout, which Makate rejected, following a Constitutional Court ruling in 2019, which directed the company to enter negotiations and determine a compensation amount due to Makate.
"Whether he [Joosub] likes its or not, there is an inherent bias on his part, although he may come back and say he was fair," Makate told Fin24.
Makate now wants the court to review Vodacom's determination and table the financial records used to arrive at the proposed compensation amount. He had argued that Vodacom had wrongfully confined its determination on revenue share to a five-year period and erred in relying on incorrect figures for revenue generated.
"The process that we are going into now is about correcting the mistakes that we feel [Joosub] made in arriving at [the] R47 million determination," Makate told Fin24.
The review is set to be heard in May.
He further argues that Vodacom used five-year period as the basis for the compensation, while he had suggested a period of 18 years. The Please Call Me service, which was launched in March 2001, allows Vodacom subscribers to send a 'please call me' text message free of charge to another user on the same network.
Makate has in previous court hearings stated that the Please Call Me system earned Vodacom about R70 billion in revenue. On Monday, he accused Vodacom of not being entirely "transparent and fair" in their engagements.
"I don't think they are transparent at all, although the Constitutional Court ordered us to negotiate in good faith," he said of the negotiations that took place between 2017 and 2018.
He lamented that the company had to be forced by a judge's ruling to make certain documents and contracts available to them in order to determine his dues.
"We got some of them. We are in a position where we can say we will use whatever we have ... we will move on.
"It had to take a court order for them to disclose the contract that we wanted," he added.
According to Bernadette Versfeld, a lawyer specialising in intellectual property law at Webber Wentzel, quantifying damages is normally difficult and in Makate's case, arriving at the desired amount would require disclosure of the necessary financial documents, which may be no longer available.
"Usually, companies are required by law to keep documents for tax purposes for a period of five years. There is nothing that require companies to keep documents for longer than five years," said Versfeld.
"I don't think how he is going to prove that without financial records."
She stressed that according to intellectual property law, any work that falls under the scope of an employee's duties remains the property of a company. However, as a trainee accountant, at the time of the Please Call Me concept, the invention fell outside his scope of work. Vodacom said on Monday it had "repeatedly stated its willingness to pay Mr Makate a substantial amount".
The company said it still holds the view that it entered into negotiations and negotiated with Makate "in good faith, in accordance with the order of the Constitutional Court".
Not giving up
Makate first mounted the litigation against Vodacom in 2008, after his engagements with the company over the matter yielded no results. By that time, Vodacom was processing 20 million Please Call Me requests daily, according to an excerpt contained in a 2014 High Court judgment.
The passage cited in the judgment is from a book co-authored by former Vodacom CEO Alan Knott-Craig, who stated that Vodacom made money by "adding short advertisements just below the message, but the real money came from the return call. This concept generated hundreds of millions in revenue."
Makate, who is now employed in the public service, said he was never under the illusion that taking on the cellphone giant would be easy, adding that giving up was not an option.
"It has been a long battle ... but I am not particularly exhausted."
"I knew from the onset that it won't be easy and I was also advised as such ... that it won't be a quick process," he said of the time it has taken going in and out of court.
In January 2019, a group of protesters descended on the company's headquarters in Midrand to voice anger at how the company had treated the Makate matter.
Following the protests, Vodacom spokesperson Byron Kennedy said the Please Call Me service was not, and never has been, a "money spinner" for the mobile operator as it did not generate direct revenue.
Numbers submitted by Makate's legal representative suggested that Please Call Me generated at least R205 billion in call revenue for Vodacom since 2001.