‘Please Call Me’ court win

■ Vo­da­com or­dered to hand over data it with­held ■ In­ven­tor seeks more than R47m com­pen­sa­tion

The Star Early Edition - - FRONT PAGE - BON­GANI NKOSI bon­gani.nkosi@inl.co.za @Bon­ganiNkosi8­7

VO­DA­COM has been or­dered to hand Please Call Me in­ven­tor Nkosana Makate all the doc­u­ments he needed to prove that he was owed more than R47 mil­lion.

This is the amount that the tele­coms gi­ant wanted to pay Makate fol­low­ing his vic­tory at the Con­sti­tu­tional Court in 2016.

The apex court ruled that he in­vented the ser­vice in 2000 when he was still em­ployed by Vo­da­com.

The group was or­dered to ne­go­ti­ate in good faith with Makate to de­ter­mine rea­son­able com­pen­sa­tion. But four years af­ter the rul­ing, the par­ties were still en­gaged in le­gal bat­tles over the amount Makate should re­ceive.

The ne­go­ti­a­tions that en­sued af­ter the Con­court’s rul­ing did not re­sult in what Makate be­lieved was rea­son­able com­pen­sa­tion for his idea.

Af­ter Vo­da­com of­fered him R47m as a set­tle­ment, Makate turned to the North Gaut­eng High Court in Pre­to­ria to seek an or­der set­ting aside the de­ci­sion.

Makate’s grounds were that Vo­da­com erred by bas­ing its of­fer on a fiveyear rev­enue share. He also main­tained that the group used in­cor­rect fig­ures for rev­enue gen­er­ated over the five-year pe­riod.

Vo­da­com’s of­fer should have been based on rev­enue made over 18 years and not just five, Makate ar­gued in court pa­pers.

He also re­vealed that, dur­ing the ne­go­ti­a­tions, Vo­da­com failed to give him data show­ing the rev­enue earned from the Please Call Me con­cept.

Makate’s main ap­pli­ca­tion for re­view of the R47m de­ci­sion is still to be heard. But he tasted vic­tory in an in­ter­locu­tory ap­pli­ca­tion brought to com­pel Vo­da­com to hand over vol­umes of data, in­clud­ing rev­enue records it with­held dur­ing ne­go­ti­a­tions.

Vo­da­com op­posed the ap­pli­ca­tion, which was heard by Jus­tice Jody Kol­lapen, on grounds that the rev­enue fig­ures Makate sought would have to be drawn from bil­lions of data based on calls cus­tomers made over the years.

Vo­da­com ar­gued that such data was not avail­able, as it only stored six months worth of call data at any given time. Vo­da­com charged that even if such data was avail­able, Makate was not en­ti­tled to it.

Makate dis­puted that the un­der­ly­ing data and fi­nan­cial in­for­ma­tion he sought was not avail­able.

Vo­da­com as­signed a se­nior an­a­lyst to sup­ply sim­i­lar records dur­ing the Con­court hear­ing and the ex­er­cise took about two weeks, ar­gued Makate.

He main­tained that while raw data re­lat­ing to calls would no longer ex­ist, it was rea­son­able to ex­pect Vo­da­com to be able to pro­vide data on voice rev­enue in­come.

Jus­tice Kol­lapen was swayed by this ar­gu­ment, rul­ing that ev­i­dence in­di­cated that while raw data no longer ex­isted it was “pos­si­ble to dis­ag­gre­gate the rev­enue in­come”.

He ruled that any com­pen­sa­tion amount not based on rev­enue data would be spec­u­la­tive and not ac­cu­rate.

“Ul­ti­mately the amount of that li­a­bil­ity lay out­side of the con­trol of (Vo­da­com),” said Jus­tice Kol­lapen.

The doc­u­ments he or­dered Vo­da­com to sup­ply Makate in­cluded fi­nan­cial records and copies of con­tracts with groups such as iBurst, Net­care 082 911, Look4Help, Cen­triq In­surance and Smart Call.

Vo­da­com also had to give Makate pages from a KPMG 2008 foren­sic re­port that looked into its rev­enue shar­ing model with an undis­closed ser­vice provider.

Yes­ter­day, Makate told The Star Jus­tice Kol­lapen’s rul­ing would se­cure him some crit­i­cal data he needed for his main ap­pli­ca­tion. “This judg­ment is very im­por­tant. We could not fi­nalise my pa­pers (filed for the main ap­pli­ca­tion) with­out the doc­u­ments that Vo­da­com with­held,” he said.

In a state­ment Vo­da­com said: “We are re­view­ing Jus­tice Kol­lapen’s judg­ment where af­ter a de­ci­sion on ap­pro­pri­ate next steps, in­clud­ing the pos­si­bil­ity of an ap­peal, will be taken.

Makate’s case be­fore Jus­tice Kol­lapen was not about the rea­son­able­ness of the quan­tum of the com­pen­sa­tion payable to him, but rather the pro­duc­tion of the record by the dead­lock breaker, and fur­ther and bet­ter dis­cov­ery of doc­u­men­ta­tion.”

The tele­coms gi­ant said it re­mained com­mit­ted to com­pen­sat­ing Makate. |

| TI­MOTHY BERNARD African News Agency (ANA)

PLEASE Call Me in­ven­tor Nkosana Makate wins bat­tle in his quest for data in bid to ob­tain fair com­pen­sa­tion from Vo­da­com for his in­ven­tion.

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