Publications
Partners
April 26 2016 is a date that will be etched in our memories for a long time to come. Law students at the country’s universities and learners at schools could find themselves having to answer questions about the significance of this day.
For it was on this day that the Constitutional Court ruled on a matter that had captured the country’s attention – the matter between a regular guy called Nkosana Makate and giant mobile operator Vodacom.
The court granted Makate leave to appeal earlier court judgments, which had ruled against his being compensated for his invention of the revolutionary “Please Call Me” message service.
The highest court in the land directed that Vodacom was bound by an agreement which Makate had signed with one Phillip Geissler, stating that the operator “is ordered to commence negotiations in good faith with … Makate for determining a reasonable compensation payable to him in terms of the agreement”.
The court went further, stating that in the event that the parties failed to agree on a reasonable compensation, “the matter must be submitted to Vodacom’s chief executive officer for determination of the amount within a reasonable time”.
Makate was over the moon at the ruling, hoping that the end was nigh and the battle – of David versus Goliath proportions – was finally over. It was not.
In passing judgment, our learned justices had relied heavily on good faith between the warring parties to find a solution that would be reasonable to both parties. But this reliance on good faith was ill-advised as there was no way that Vodacom would offer Makate a “reasonable compensation” that he would gladly accept. And, there was no way Vodacom would fork out whatever Makate would propose as fair and just compensation for this invention.
The figures that have been bandied about in reference to Vodacom’s offer and Makate’s demands are worlds apart, with no prospect of the two finding middle ground.
There was a reason that the conflict between Makate and Vodacom reached our courts. It bears mentioning that the battle started in the Pretoria High Court and then moved to the Supreme Court of Appeal in Bloemfontein, before landing at the doors of the Constitutional Court in Braamfontein. The parties were fighting over a contractual agreement and over Makate’s demand for payment for his invention. The good faith between the two parties was eroded long before they got to court, and to expect them to negotiate from this standpoint was unrealistic.
Vodacom is a business – its reason for being is to make money and fill the pockets of its shareholders, period. Only once the shareholders are satisfied with profits can the company look to render assistance to the public by offering wheelchairs here or building a daycare centre there, in keeping with its corporate social responsibility obligations.
Then there is Makate, who feels hard done by after his former bosses promised him that he would be rewarded for his invention. When this promise failed to materialise, he sought to recover what he believed was rightfully his.
The court, upon assessing how broken the relationship was between Vodacom and Makate, could have prevented the current stalemate over the finalisation of a just and fair compensation. It could have appointed skilled, objective professionals to assess the value of Please Call Me to Vodacom. These experts would have then been able to make a determination of what Makate’s share should be.
Thereafter, the presiding judge could have made the report, compiled by those skilled number crunchers, an order of the court, which would have been binding for both parties. And thus, the matter would have been finalised and the country would have moved on.
Now it is almost three years since April 26 2016, and we are still sitting with an unresolved case, which will more than likely be with us for some time to come.
Follow me on Twitter @DumisaneLubisi
