'Please Call Me' inventor, Nkosana Makate.

Vodacom has lodged its application for leave to appeal, against the Supreme Court of Appeal of South Africa (SCA) judgement issued earlier this month, at the Constitutional Court.

The SCA ordered Vodacom to pay Nkosana Makate, regarded as the creator of ‘Please Call Me’ idea, 5% to 7.5% of the total money generated from the telecoms model over an 18-year period, from 2001 to 2019, plus interest.

At the time, Vodacom informed shareholders of its intention to appeal the order, and today the telco has announced it has now approached the Constitutional Court.

It said: “As a responsible corporate citizen, Vodacom is respectful of the judicial system and abides by the laws of South Africa. Having considered the SCA judgment and order, it is Vodacom’s view that there are key aspects of this matter which do not accord with the spirit of the law and that the judgment and order are fundamentally flawed.

“It is apparent from the dissenting judgment of the SCA that the majority judgment overlooked or ignored many of the issues between the parties and their evidence and submissions relating to those issues,” said the company.

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 biggest telco, by subscriber numbers, said the impact of the SCA Judgment, should it be upheld, would be vast and wide-ranging on both Vodacom South Africa and Vodacom Group, as well as the attractiveness of South Africa as an investment destination.

“It would negatively impact our employees, shareholders and Vodacom’s contribution to public finances. It would also have an impact on our network investment, coverage, and social programmes,” said the company.

Vodacom says it has previously negotiated with Makate, in an attempt to agree reasonable compensation payable to him. These efforts, to date, unfortunately, have failed.

It added: “It is Vodacom’s desire that the matter be amicably resolved and brought to a timely conclusion.

Makate has consistently argued that Vodacom owes him a compensation of $542 million (R10.2 billion), excluding accumulated interest and all legal bills incurred since the Constitutional Court decision in 2016.

At the time, the Constitutional Court ordered the parties to engage in good faith negotiations to determine reasonable compensation.

Makate has insisted for years that his negotiations with Vodacom “have been anything but fair” requesting that the telco operator reveal all income generated by the Please Call Me idea.

Makate’s legal team calculated that Please Call Me has earned Vodacom $10.8 billion (R205bn) in call revenue from 2001 to 2020, which excludes, among other things, advertising revenue linked to the telco revenue model.