Vodacom has taken its case to the Constitutional Court, aiming to overturn a judgment from the Supreme Court of Appeal regarding the “Please Call Me” dispute, which it deems “fundamentally flawed.”
This move follows the dismissal by the Supreme Court of Vodacom’s application for leave to appeal against a prior High Court ruling. The Supreme Court directed Vodacom’s CEO, Shameel Joosub, to extend a new offer to Nkosana Makate, operating on the premise that Makate had an 18-year contractual relationship with the company.
In 2016, the Constitutional Court recognised Makate as the inventor of the “Please Call Me” service, despite ongoing debate over its origins. The court upheld Makate’s rights as a former employee, affirming his entitlement to compensation for the invention. However, it tasked Joosub with determining a fair payout amount.
In line with a 2016 Constitutional Court order, Vodacom’s CEO determined a compensation of R47 million to Makate, a former employee of Vodacom, for a “buzz idea” which was developed and launched by Vodacom as a free service to its customers in 2001.
Makate rejected this determination and brought an application to the Gauteng Division of the High Court of South Africa (High Court) to have the CEO’s determination judicially reviewed and set aside. On 8 February 2022, the High Court set aside the CEO’s determination and ordered him to reconsider the settlement offered to Makate.
Vodacom launched an application for leave to appeal against the judgment on 25 February 2022 and order of the High Court. On 6 February 2024, the Supreme Court handed down its judgment.
In a statement to investors on Wednesday, Vodacom said as a responsible corporate citizen it 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 that 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,” reads the statement.
“It is apparent from the dissenting judgment of the Supreme Court that the majority judgment overlooked or ignored many of the issues between the parties and their evidence and submissions relating to those issues.”
In its application for leave to appeal to the Constitutional Court, Vodacom makes the following submissions:
- the Supreme Court’s order impinges on the Rule of Law in terms of section 1 of the Constitution of the Republic of South Africa 1996 (“the Constitution”) and deprives Vodacom of its right to a fair trial under section 34 of the Constitution;
- the Supreme Court misdirects itself by considering and deciding on issues which had not been placed before it for adjudication by either Vodacom or Mr Makate;
- the Supreme Court selectively chooses to only have regard to Mr Makate’s evidence, as in the case of models for computing compensation payable to Mr Makate, while ignoring swathes of evidence in this regard presented by Vodacom contesting Mr Makate’s version; and
- the Supreme Courtorders are unintelligible, incomprehensible, and vague rendering them incapable of implementation and enforcement.
“The impact of the Supreme Court judgment, should it be upheld, would be vast and wide-ranging on both Vodacom South Africa and Vodacom Group, as well as the attractiveness of South Africa as an investment destination,” stated the company.
“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 said it has previously negotiated with Makate in an attempt to agree reasonable compensation payable to him.
“These efforts, to date, unfortunately have failed. Vodacom remains open to constructive dialogue and good faith negotiations and, without prejudice to its Constitutional Court Appeal process, to agree a fair and reasonable amount as compensation for MMakate’s idea that led to the development of the PCM product. It is Vodacom’s desire that the matter be amicably resolved and brought to a timely conclusion.”
