Litigation: ‘Please Call Me’ value difficult to determine – Trengove

While the issue of what is reasonable compensation for a brilliant idea is the essence of Please Call Me inventor Nkosana Makate’s case, it is like asking what the length of a piece of string is – there is no obvious answer. A Cape Times report says this is the argument of Advocate Wim Trengove SC, acting on behalf of Vodacom. The cellphone giant is adamant that the R47m offered to Makate is ‘over generous’. The counsel acting for Vodacom argued on the third day of the proceedings in the Gauteng High Court (Pretoria) that Judge Wendy Hughes could only overturn this amount if she could find that Vodacom chief executive Shameel Joosub acted unreasonably when he decided that this was fair compensation. In determining the amount, Joosub made several generous assumptions in Makate’s favour, the court was told.

When Joosub came to R47m, he did so honestly and to the best of his ability. He kept an open mind and listened to submissions from both Vodacom and Makate before he came to this amount, Trengove said. It was argued that while Makate said the calculations were wrong and that he was due much more, he never gave a precise amount of what he thought he should get. The Makate camp earlier argued that looking at the various models, he was entitled to at least R10bn, without interest. It was said that Vodacom should look at the percentage of customers who used the Please Call Me application and calculate what revenue Vodacom had generated from this over at least the past 18 years.

Trengove argued that the question was not whether the R47m was right or wrong, but rather whether it was a patently inequitable result following the proceedings before the CEO. According to the Cape Times report, Trengove said the key was to look around the world to see what employers paid employees for brilliant ideas thought out from home. He questioned why the Makate camp did not investigate this aspect. He said what he could gather was that employers either gave their employees a trip to Mauritius or R1m or so, but never R47m. Counsel for Makate this week argued that the Please Call Me invention was patentable. Trengove asked why this route was then never explored by Makate. ‘He was never a service provider. He provided a brilliant idea and that is all, just an idea.’ Trengove said Makate never invested the capital to expand the idea, nor did he provide a product. He argued that Vodacom had to adapt the idea to make it usable. The report notes Vodacom concluded its submissions yesterday afternoon by asking the court to turn down the review application. Advocate Cedric Puckrin SC indicated that he would reply to all the arguments today (Friday).

Makate's legal team said the matter was an accounting exercise that Vodacom got wrong. After a Constitutional Court ruling in 2016, Vodacom was ordered to enter into negotiations with Makate to find a fair compensation. While it was agreed by both parties that Makate was owed 5% of the proceeds generated from his invention, the disagreement lies in what constitutes revenue generated from the invention, notes a Pretoria News report. 'The various judgments make clear that for most of the last 20 years, Vodacom has sought to slither away from paying Makate what he is due,' Advocate Gilbert Marcus SC, one of the senior advocates in Makate’s camp, said.

The Makate camp told Hughes that the R47m compensation set by Vodacom should be reviewed and set aside. According to them this court should determine, given the calculations forwarded to the court by Makate’s team, the amount. This, they said, would avoid further delay in finalising this legal process that has taken the best part of a decade already. In the alternative, they submitted, if this court was to refer the matter back to the CEO, then the court should impose more strict constraints on precisely what aspects were being referred back to the CEO and how the issue should be approached. The saga began in November 2000, when Makate – then a young trainee accountant at Vodacom – came up with 'world first' 'Please Call Me' idea, notes the Pretoria News. 'Makate was promised compensation. It is common cause that Vodacom has earned billions of rands from Makate’s idea. Despite the product being such an overwhelming success, Vodacom refused to negotiate compensation for the use of the idea,' Marcus said. After various attempts by Makate to negotiate with Vodacom on his compensation, he turned to the courts.

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