Johannesburg - Vodacom legal counsel Fanie Cilliers has sought to discredit arguments about who had authority to negotiate, which were raised by Nkosana Makate’s counsel in his battle to seek compensation from the company for his Please Call Me idea.
As closing arguments entered their second day in the South Gauteng High Court yesterday, it became more apparent that there are two distinct understandings of contractual agreements at play in the dispute.
Makate is relying on age-old sentiments of negotiation based on principles of ubuntu and good faith, espousing fundamental human virtues, compassion and humanity. Vodacom, in contrast, is arguing from a clinical position of processes and governance.
If Makate wins, the case stands to alter common law so that negotiations made in the spirit of ubuntu and good faith must form part of common law in contractual obligations.
The concept has been mooted for inclusion in common law by some Constitutional Court cases and by academics but until now there has not been an opportunity to apply this principle in court.
Cilliers, senior counsel for Vodacom, has suggested that Makate’s case could be in jeopardy if the court found there was no authority to enter into an agreement with Makate to pay him for his idea, which led to the development and launch of Please Call Me by Vodacom in 2001.
Makate, who had always sought a long-term revenue-sharing arrangement with Vodacom, is seeking an order compelling Vodacom to negotiate compensation.
Please Call Me is a messaging service that a cellular user without airtime can use to elicit a return call from another user. Makate claims he submitted the basic idea for this service in a memorandum to his superiors at Vodacom in 2000.
According to Makate, the executive for product development, Phillip Geissler, persuaded Makate to disclose his idea to Geissler after he promised to compensate Makate.
The court has heard during the trial, which ran over July and into August, that Geissler acknowledged in an e-mail to Makate that conventionally Vodacom employees were expected to contribute ideas and were not paid for the ideas but that Makate was an exception.
Geissler promised to approach then chief executive of Vodacom Alan Knott-Craig to discuss the matter. Makate told court during cross-examination in July that Geissler had also said that if he and Makate could not agree, Knott-Craig would be asked to adjudicate in the matter.
Vodacom has argued throughout the trial that Geissler had no authority to enter into contractual agreements on behalf of Vodacom outside of the parameters of a delegation-of-authority process.
Cilliers suggested to Judge Philip Coppin yesterday that he should dismiss an application by Cedric Puckrin, senior counsel for Makate, to amend a claim.
Puckrin is arguing that Geissler may not have had actual authority as Vodacom claims but he had ostensible and implied authority. The fact that Lazarus Muchenje, Makate’s line manager at the time of his employment in Vodacom’s finance division in 2000, decided to approach Geissler, who would know what to do with Makate’s idea, was one example.
Cilliers has also argued that it was important to note that Makate’s claim was brought solely on an alleged contract. He argued that product development was within Geissler’s job description. If he implemented a new product he was simply doing his job. “The authority to bind him as a representative in a contractual contract is an entirely different matter.”
Closing arguments are due to continue on November 12. - Business Report