South Africa’s Constitutional Court appears to be failing Please Call Me (PCM) inventor Kenneth Nkosana Makate to resolve his 16-year legal battle for compensation from telecom giant Vodacom.
While employed by Vodacom, Makate developed the innovative PCM service in 2001, which raked in billions of rand for the company. Despite this significant contribution, the former Vodacom employee is still engaged in a relentless legal battle for fair compensation. On February 6 2024, the Supreme Court of Appeal (SCA) dismissed Vodacom’s appeal with costs.
The SCA further ordered Vodacom to pay Makate between 5% and 10% of the total revenue that the service generated over the past 18 years. However, Vodacom applied to the Constitutional Court for leave to appeal against the SCA judgment and subsequent settlement order. It appears that Vodacom’s move has served only to further delay the settlement of the matter.
Three months after Vodacom lodged the matter with the Constitutional Court, no date has yet been set for the hearing. Like all other courts, the Constitutional Court has a backlog of cases. Perhaps the Makate case is not considered urgent. If judge Mandisa Maya is appointed chief justice, replacing Raymond Zondo who is retiring, she must ensure that this case — considered the biggest settlement case in the history of South Africa’s judiciary — is concluded without further delay. If not, then Makate would have been undeniably let down by the Constitutional Court.
He has spent his young life fighting for fair compensation and he still has not got anything
While it is a case of “David versus Goliath”, a speedy resolution of the matter could set a positive tone for Maya’s tenure as chief justice. Last week, during her interview at the Judicial Services Commission for the position, Maya boldly declared: “If I’m appointed to this position, I know that I will bear the enormous responsibility of ensuring that the institution remains strong, retains its integrity and firmly executes its role of protecting and promoting the role of the constitution and the law so that our country, especially the poor and most vulnerable members of our society, are guaranteed access to justice.”
This case offers her the opportunity to live up to her words. The Constitutional Court moved swiftly in the case involving the eligibility of former president Jacob Zuma, the leader of the new uMkhonto weSizwe (MK) party, to stand for parliament. The speed with which the case was decided was impressive, to say the least.
Zuma, who was on the ballot for the MK party, was disqualified from standing for parliament by the IEC. A similar determination by the Constitutional Court must apply to the Makate case to ensure that justice delayed is not justice denied. He has battled Vodacom in different courts for years over fair compensation for his invention. It has been a 23-year battle for him. Makate invested Please Call Me when he was 24 years old, and is now 47 years old.
He has spent his young life fighting for fair compensation and he still has not got anything. Back in 2016, the Constitutional Court recognised Makate as the inventor of the service. The court confirmed his rights as an inventor and affirmed his right to compensation for the invention. However, the same court instructed the CEO of Vodacom, Shameel Joosub, to determine an appropriate amount of compensation. In 2016, Vodacom’s CEO proposed a R47m settlement — an offer that Makate said was insulting given the amount of money the mobile giant made from his invention. He rejected the offer and instead filed an application in the Gauteng High Court for judicial review.
On February 8 2022, the high court ordered a reconsideration of the settlement offered. Recently, the high court found that Makate was entitled to 7.5% of the total revenue from the Please Call Me product for 18 years, from 2001 to 2019, plus interest. The proposed model for payment to Makate will enable him to be entitled to between R29bn and R63bn. After eight years, the matter is back before the highest court and hopefully for the last time.
It is time for the Constitutional Court to assert its authority and treat the PCM case as a landmark case that will have far-reaching implications for the legal system.
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