SCA must again decide on 18-year legal battle over Please Call Me compensation

Following a legal battle of more than 18 years, Please Call Me (PCM) inventor Nkosana Makate is ready to fight on as the Constitutional Court on Thursday ruled that the matter must be reconsidered by the Supreme Court of Appeal (SCA).

After the latest ruling by the apex court, Makate said the SCA must once again hear the matter and make a new finding and he is confident that he can convince that court to recognise his entitlement to billions of rand for his PCM concept.

Acting Deputy Justice Mbuyiseli Madlanga said the SCA failed to deal with all the matters that were presented before it during the appeal.

“The jurisdiction of the court is confined to constitutional issues. In this judgment, we dealt with factual issues, without deciding them, purely to demonstrate the SCA’s failure to comply with the duty of proper consideration,” Judge Madlanga said.

He added that the Constitutional Court cannot suddenly determine the factual issues.

“The matter must be remitted to the Supreme Court of Appeal for a proper determination of the appeal, and it must be heard by a differently constituted panel.”

In a unanimous judgment, the judgment penned by Judge Madlanga before he retired on Thursday, the court found that the SCA had committed several errors in assessing Vodacom’s appeal against a previous high court decision.

The high court initially ordered Vodacom to pay Makate between 5% and 7.5% of the revenue generated from PCM over 18 years. Makate has been fighting for what he said is fair compensation for his invention, which he believes should be at least R10 billion. Vodacom, on the other hand, estimated a fair compensation at around R50 million.

Although he is facing yet another setback, Makate has consistently maintained that his intellectual property was unfairly taken and that he deserves fair compensation.

“I believe I still have a strong case. I am hopeful that the SCA will see the justice in my claim and order Vodacom to pay me what I am owed for my invention,” he said.

The Constitutional Court in April 2016 declared that Vodacom is bound by the agreement concluded with Makate and ordered it to commence negotiations in good faith with Makate for determining a reasonable compensation payable to him in terms of the agreement.

The CEO accordingly awarded Makate compensation for his product in the amount of R47 million. Dissatisfied, Makate instituted review proceedings in the high court against the amount of compensation.

The high court found in favour of Makate but remitted the determination of the amount of compensation back to the CEO.

This order was coupled with certain directives that the CEO was required to follow in his redetermination.

The parties resumed the negotiations, but there was no fruitful outcome. Makate at one stage made a settlement proposal of R20 billion. The figure was determined based on a formula multiplying the effective rate per minute, PCM minutes of use, and the returned call conversion rate. Vodacom presented a counteroffer of R10 million.

These final negotiations failed. Vodacom, meanwhile, turned to the SCA to appeal the high court’s order that Makate should receive more compensation.

The SCA subsequently rejected the appeal and ordered Vodacom to compensate Makate between 5% and 7.5% of the revenue generated from the invention. Vodacom ultimately turned to the Constitutional Court as it said the SCA did not properly determine the issues before it.

Judge Madlanga found that the SCA breached its duty of properly considering all the facts, such as, for example, whether the R47 million offer by Vodacom was not unjust.

He also said the SCA disregarded certain issues and merely highlighted the parties' arguments, but it did not engage with the evidence before it. Therefore, the judge said, the matter must be reconsidered by the SCA.

Cape Times