Leave to appeal Makate judgment as battle continues
THE North Gauteng High Court, Pretoria, will this week rule on whether Vodacom should be granted leave to appeal against the recent judgment in favour of “Please Call Me” (PCM) inventor, Nkosana Makate, finding he was short changed by the cellphone giant.
Vodacom turned to the court on Friday, setting out 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 owed for his invention. The judge gave Vodacom some direction of what to take into account in making its new determination and gave Vodacom's CEO Shameel Joosub two weeks to come up with a new amount.
But Vodacom 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' judgment on ice. But even if leave to appeal is denied this week, it can be a while before
Makate may see what his invention is 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 would come to a different finding than that of Judge Hughes.
The judge said the calculations used by Joosub in offering Makate R47 million, for what she termed a brilliant invention, was by far too conservative.
But Vodacom argued this offer was in fact “very generous”.
The company, in its application for leave to appeal, said it was common cause that the process the CEO followed (to determine what Makate is owed) was fair. The CEO had gone so far as to grant the parties a hearing, which “he was not obliged, but had elected, to do”, it said.
Advocate Cedric Puckrin SC, argued on behalf of Makate that, “Vodacom has adopted a ‘kitchen-sink' approach”, listing a host of criticisms against the ruling, simply to create “enough dust in the air to persuade this court to grant leave to appeal”, adding “the test of reasonableness led to a patently inequitable result”.
He said the court's order 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 … ”