Vodadom last week filed papers in court in which it is asking for leave to appeal against last month’s judgment in which a judge found that Makate was short-changed.
FOLLOWING yet another legal battle to get the money he believes he is entitled to, ‘Please Call Me’ inventor Nkosana Makate says he will continue the fight, even if the matter ends up in the Supreme Court of Appeal.
Vodadom last week filed papers in the Gauteng High Court, Pretoria, in which it is asking for leave to appeal against last month’s judgment in which Judge Wendy Hughes found that Makate was short-changed for his “brilliant” invention.
Makate has remained patient over the decades to wait for his money, and for the legal tussle between him and Vodacom to end.
He still remains patient, and told the Pretoria News that while he would oppose any appeal, it was Vodacom’s legal right to follow this route.
“They have a right to appeal and it is up to the court to decline or grant it. It is even Vodacom’s right to directly petition the Supreme Court of Appeal for leave to appeal if they lose this round.”
Makate, however, said that according to him and his legal team, Judge Hughes’s judgment was sound in law. “The appeal has no basis in law and in fact. The reportable judgment is solid on all fronts,” he said.
The leave to appeal application will be heard on April 1. Vodacom will ask Judge Hughes to either order that the Supreme Court hears the appeal or that it is served before a full bench (three judges) of this court.
One of Vodacom’s arguments is that the R47 million its CEO Shameel Joosub concluded was due to Makate was an “overly generous offer”.
Makate earlier turned to court to have Vodacom’s offer reviewed and overturned. He asked the court to come up with its own amount, based on various calculations, as to what was owed to him.
According to him and his legal team, he was owed billions for this invention, which is to this day still used by Vodacom.
While finding that Makate was indeed by far short-changed, Judge Hughes ordered the CEO to go back to the drawing board and to come up with a new amount.
She placed Vodacom on terms and gave them two weeks to recalculate, given some of the guidelines she had set out of them in her judgment.
This never happened, as Vodacom now chose to go the appeal route, which placed the judgment on ice pending the final outcome of a possible appeal.
In its notice filed with the court, Vodacom, in a 26-page document, cited various reasons why it believed another court would come to a different finding than that of Judge Hughes.
The judge earlier made it clear in her judgment that the calculations used by Joosub in offering Makate R47m, for what the judge called a brilliant invention, was by far too conservative.
Vodacom, in the application for leave to appeal, said it was common cause that the process which the CEO followed (to determine what Makate is owed) was fair.
According to the company, the CEO had gone so far as to grant the parties a hearing, which “he was not obliged, but had elected, to do.”
Vodacom said the judge made errors in law when she made certain findings in this case. It will argue that the CEO’s determination (of the amount due to Makate) was subject to review by the court only if it was “unreasonable, irregular or wrong so as to lead to a patently inequitable result”.
According to Vodacom this was not so.
Vodacom said its CEO conducted himself honestly and in good faith and he followed a fair process when he determined what Makate was owed.
According to Vodacom, the court erred in finding that the cellphone giant and Makate had agreed that Makate should be paid a share revenue percentage of 5%, and that the CEO was bound by that agreement.
Vodacom said the court’s finding that Joosub’s models on which he based the amount due to Makate, lacked the necessary substance and credibility and that it was not backed up by facts and documents.
Vodacom will argue that there is a strong possibility that another court will find in Vodacom’s favour.
Judge Hughes earlier ordered that Makate was entitled to be paid 5% of the total voice revenue generated from the product – starting from March 2001 to March 2021 – and not only for five years, as earlier calculated by Joosub.
She ordered that the total voice revenue must include Please Call Me revenue derived from prepaid, contract (both in bundle and out of bundle) and interconnect fees as set out in Vodacom’s annual financial statements.