Appeal decision due in ‘please call me’ case

THE North Gauteng High Court, Pretoria, will this week deliver judgment on whether Vodacom should be granted leave to appeal against the recent “Please Call Me” (PCM) inventor Nkosana Makate judgment, in which it was found he was short-changed by the cellphone giant.

Vodacom turned to the court on Friday, where it set down a long list of objections against the judgment of Judge Wendy Hughes, in which she ordered Vodacom back to the drawing board to determine how much Makate is in fact owed for his invention.

The judge gave Vodacom some direction as to what to take into account when making its new calculation, and gave Vodacom’s CEO Shameel Joosub two weeks to come up with a new amount.

Vodacom, however, filed papers in its bid for leave to appeal – either to the Supreme Court of Appeal or to a full bench (three judges) of this court.

This placed judge Hughes’s judgment on ice. But even if leave to appeal is denied this week, it could be a while before Makate sees what his invention is actually worth as Vodacom can then petition the SCA directly for leave to appeal.

In a 26-page document, Vodacom cited various reasons why it believed another court might come to a different finding to that of Judge Hughes.

The judge earlier made it clear in her judgment that the calculations used by Joosub in offering Makate R47 million, for something the judge called a “brilliant invention”, was by far too conservative.

Vodacom, on the other hand, said this offer was in fact “very generous”.

The company, in its application for leave to appeal, said it was common cause that the process which the CEO followed (to determine what Makate was owed) was fair. According to it, the CEO had gone so far as to grant the parties a hearing, which “he was not obliged to do.”

Advocate Cedric Puckrin SC, on behalf of Makate, said “Vodacom has adopted what may, with respect, referred to a ‘kitchensink’ approach”. He told the court Vodacom listed a host of criticisms against Judge Hughes’s judgment to create “enough dust to persuade the court to grant leave to appeal”. “This Court assessed the CEO’s determination clearly, concisely and correctly…. We respectfully point out that the CEO’s determination did not satisfy the test of reasonableness and led to a patently inequitable result. The CEO’s determination also failed to apply a fair process as explained by this court,” Puckrin argued.

He said the court’s order in setting aside the CEO’s determination was correct and there are no reasonable prospects of another court coming to a different conclusion.

“Mr Makate has been made to wait by Vodacom for more than two decades. He should not be made to wait close to another decade as Vodacom continues to pursue baseless appeals…,” Puckrin said.

Makate’s legal camp also, among others, argued that he had demonstrated that the CEO simply ignored certain income constituting voice revenue that was earned by Vodacom and that his invention thus generated multi billions of the cell phone giant.

Yet, Puckrin said, Vodacom remained fixated on the R47-million which it believed Vodacom owed Makate.