Nkosana Makate, the idea man of Vodacom’s “Please Call Me”, has reached an interim agreement with the British Virgin Islands company Black Rock Mining, which is claiming entitlement to 40% of his payout.
Makate and Black Rock’s attorneys made a deal on the eve of the urgent application hearing before the Johannesburg high court on Tuesday.
Errol Elsdon, former director of Black Rock Mining, initiated the urgent application seeking the court to restrain Vodacom from paying the settlement into any account other than into Makate’s attorneys Stemela & Lubbe’s trust account.
Elsdon also wanted the court to order Makate’s attorneys to withhold 40% of his payout pending finalisation of the litigation relating to whether Black Rock Mining is entitled to a large sum of the payout.
Advocate Nazeer Cassim, representing Black Rock Mining, told the court on Tuesday the two parties reached an agreement and submitted a draft order.
The order stipulates Makate has agreed to withhold 40% of his payout pending the litigation hearing next month. The agreement creates leeway for him to receive his payout from Vodacom, which was put on ice after the urgent application was launched last week.
“Pending the hearing and determination of this application in the week of December 2, the second respondent [Stemela & Lubbe], as attorney of record of the first respondent [Makate], shall hold 40% of the total proceeds received on behalf of the first respondent from the third respondent in settlement of the first respondent’s claim in the so-called “Please Call Me” litigation, in its trust account,” the agreement reads.
The agreement further states that should the application to be heard next month be postponed, struck off the roll for lack of urgency or dismissed, the obligation to retain 40% of the proceeds shall be discharged.
Judge Fiona Dippenaar confirmed the order after consent from both parties.
Advocate Reinard Michau, representing Makate, confirmed the parties had reached an interim agreement. That agreement remains in force pending determination of Black Rock Mining’s entitlement to the funds in question to be heard on the week of December 2.
The application by the foreign company is opposed.
Elsdon began the lawsuit after Makate settled with the telecom giant earlier this month, after nearly two decades of litigation, for Vodacom to compensate him for his “Please Call Me” idea.
The exact amount of the settlement has not been publicly disclosed, but it’s estimated to be worth more than R600m.
Elsdon’s claim emanates from a 2011 agreement that the late Christiaan Schoeman, on behalf of Black Rock Mining, had with Makate to fund “all of his legal costs” in the litigation against Vodacom.
Makate, in his legal papers, argues the company never fulfilled its legal obligations and he terminated the agreement in 2015. Schoeman, on behalf of the company, accepted the termination.
Elsdon, however, maintains Makate terminated the contract with the wrong company, Raining Men Trade.
Elsdon argues Makate’s agreement with Black Rock Mining still stands because the recorded cancellation of the contract refers to Raining Men Trade and not Black Rock.
He also contends his company paid Makate’s legal fees.
“Significantly, Ms Lubbe has failed to disclose to this court that an amount of R1.5m was paid into her personal banking account nominated by her in the UK.”
Makate pushed back against Elsdon and dared him to provide proof of payment of legal fees for the litigation.
“An initial amount of money was paid to Ms Lubbe in 2011 for the purpose of paying my legal representatives. Not a cent has been paid since the paltry amount of R7,853 by Mr Schoeman on December 4 2014,” Makate argues in his rebuttal.
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