Margherita Della Valle, chief executive, Vodafone Group.

The South African Constitutional Court (ConCourt) has rejected Vodafone's request to join the long-running Please Call Me case, as an amicus curiae (friend of the court). 

The Please Call Me concept is that a user without airtime can send a text message to another subscriber, who will then phone them back.

Nkosana Makate, the creator of Please Call Me, has requested a ConCourt review of Vodacom's $2.6 million (R47 million) compensation offer for the product.

To this end, Vodafone, which owns 65.1% of Vodacom and is led by Margherita Della Valle as CEO, moved to be admitted as a friend of the court to support its subsidiary.

The Sunday Times reported today that Vodafone's application had been denied by the court.

The order by ConCourt, under case number CCT 54/24, reads: "The Constitutional Court has considered the application for admission as amicus curiae. It concluded that the application should be dismissed because no case has been made out for admission as amicus curiae. The court has decided not to award costs."

The decision-making panel was led by Chief Justice Mandisa Maya and included Justices Mbuyiseni Mandlanga, Steven Arnold Majiedt, Rammaka Steve Mathapo, Nonkosi Mthlantla, Owen Rogers, Leona Valerie Theron, and Zukisa Tshiqi.

Vodacom approached the ConCourt after the Supreme Court of Appeal (SCA) ruled that Makate is entitled to between 5% to 7.5% of the total revenue earned by the idea, plus interest. The revenue was generated over an 18-year period, from 2001 to 2019.

In its application for leave to appeal to the Constitutional Court, Vodacom makes a number of submissions, including that:

1.The SCA misdirects itself by considering and deciding on issues which had not been placed before it for adjudication by either Vodacom or Makate;

2.The SCA selectively chooses to only have regard to Makate’s evidence, as in the case of models for calculating compensation payable to Makate, while ignoring swathes of evidence in this regard presented by Vodacom contesting Makate’s version; and

3.The SCA orders are unintelligible, incomprehensible, and vague, rendering them incapable of implementation and enforcement.

In addition, Vodacom said the SCA’s order impinges on the Rule of Law, in terms of section 1 of the Constitution of the Republic of South Africa 1996, and deprives Vodacom of its right to a fair trial under section 34 of the Constitution.

South Africa's largest telco, in terms of subscriber numbers, also claims if the SCA judgement remains valid; it will have a far-reaching impact on both Vodacom South Africa and Vodacom Group, as well as the attractiveness of South Africa as an investment destination.

The SCA rejected Vodacom's appeal against a previous High Court verdict that found the mobile operator had not appropriately compensated Makate.

After the SCA verdict, Makate told ITWeb in February that he had made numerous sacrifices during his protracted legal struggle against Vodacom in the Please Call Me case.

Makate said at the time: “I am thrilled with the judgement; it takes us a bit further and much closer to finality. It’s been a long time, the sacrifice has been huge, and a 15-year battle with a massive company like Vodacom is no child’s play.”