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Vodacom 'Please Call Me' trial heads back to Supreme Court of Appeal

Isaac Mahlangu Senior reporter
Please Call Me inventor Nkosana Makate. File photo.
Please Call Me inventor Nkosana Makate. File photo.
Image: Simphiwe Nkwali

The legal battle between mobile communications giants Vodacom and Please Call Me inventor Nkosana Makate is once again headed for the Supreme Court of Appeal in Bloemfontein.

The Pretoria high court on Tuesday granted Vodacom leave to appeal a February ruling which gave the company one month to make “a fresh determination” to pay Makate.

Judge Wendy Hughes stated in her seven-page judgment that she was persuaded that “a compelling reason exists to grant leave to appeal”.

She said the bone of contention was on the application of what is termed the Bekker test which Vodacom argued in its leave to appeal application that Hughes had failed to apply in her February judgment which favoured Makate.

“Vodacom goes on to argue, ‘[b]ut it was fatal nonetheless because the Bekker test only permits the court to interfere with the CEO’s determination if its outcome is patently inequitable’, stated Hughes in her judgment.

She said that on the other hand, “the cornerstone of Mr Makate’s argument, on this aspect, was that the CEO’s determination did not satisfy the test of reasonableness and led to a patently inequitable result”.

“Mr Makate contended that the parties, as this court affirmed in the judgment, agreed on the contractual terms and duties that the CEO had to employ in reaching the determination. As such, Mr Makate argued, that the classification of the role of the CEO was not the be all and end all as the agreement between the parties had to also be taken into account and by virtue of contractual terms, [the CEO would] have duties beyond the requirements to act honestly and in good faith,” Hughes said in the judgment.

Makate rejected the cellphone giant's compensation offer of R47m which was made in 2019.

Makate said he’s ready to continue with his fight for a fair compensation from his former employers.

“We always knew that Vodacom will appeal, and we're prepared for the SCA and the Constitutional Court if needs be. Judge Hughes still sands by her judgment but nevertheless we were expecting this from Vodacom,” Makate said.

The legal dispute which has dragged on for about two decades has already been to the Constitutional Court, with the apex court ruling in April 2016 that Makate has to be compensated for his idea.

Vodacom has welcomed the court’s decision granting them leave to appeal.

"Vodacom’s application for leave to appeal is, inter-alia, premised on the grounds that Vodacom CEO Shameel Joosub’s conduct in determining a settlement of R47 million had not been found by the High Court to be unreasonable, irregular and wrong; and determination was reasonable," a Vodacom spokesperson said

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