Vodacom takes Please Call Me saga back to the Constitutional Court

Telecoms group Vodacom says it has filed papers to apply for leave to appeal at the Constitutional Court over its ongoing saga with Nkosana Makate and the Please Call Me service.

This follows the judgement by the Supreme Court of Appeal earlier this month against Vodacom, whereby the courts ordered the group to pay Makate 5%–7.5% revenue share related to the service, calculated over 18 years, with interest.

Vodacom said that it has considered the judgement and believes that it is fundamentally flawed, arguing that the majority ruling ignored various issues between the parties and disregarded evidence and submissions relating to them.

In its appeal to the Constitutional Court, the group is arguing that:

• The SCA’s order deprives Vodacom of its right to a fair trial under section 34 of the Constitution;
• The SCA overreached and 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 choses 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 both Vodacom South Africa and Vodacom Group, as well as the attractiveness of South Africa as an investment destination,” the group said.

“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.”

Reading the SCA order and applying the modelling would see Makate score a payout of R29 billion at minimum, according to MyBroadband’s investations. This is around 15% of Vodacom’s total market capitalisation.

Vodacom said it has previously negotiated with Makate in an attempt to agree on reasonable compensation payable to him. However, it noted that these efforts 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 Makate’s idea that led to the development of the PCM product,” it said.

“It is Vodacom’s desire that the matter be amicably resolved and brought to a timely conclusion.”

Read: ‘R29 billion’ Please Call Me idea could make Makate one of the richest people in South Africa