Asha Speckman
TODAY Judge Phillip Coppin of the South Gauteng High Court is expected to deliver a crucial ruling that will determine the future direction of the Please Call Me case involving cellular network operator Vodacom.
Vodacom’s legal team brought an application for absolution before Judge Coppin on Friday, hoping that the court will set aside the case brought against the firm by former employee Nkosana Makate and order him to pay the costs for Vodacom’s three counsel.
Makate, who claims to be the inventor of the Please Call Me messaging service, is the plaintiff in the case and is seeking a court order to compel Vodacom, the defendant, to negotiate with him a reasonable compensation for his idea, which he claims to have submitted to the company in 2000.
But Vodacom’s counsel has raised certain flaws in his argument that, in its opinion, make it pointless for the trial to continue.
The evidence presented in court since the trial began on July 22, while provoking sensation, has also cast into the spotlight the delicate issue of disclosure of inventions by employees within their scope of their employment.
Counsel for Vodacom and for Makate have presented compelling arguments.
“Absolution is sought on the basis of the version of the plaintiff and his own witnesses,” Vodacom said in heads of argument on Friday.
Vodacom’s plea was underpinned by four themes, which included that there was no evidence of authority to contractually bind Vodacom to compensate Makate.
“The plaintiff and Mr (Lazarus) Muchenje [Makate’s former supervisor] testified that neither Mr Muchenje nor Mr (Philip) Geissler [the former executive for product development] had any authority to commit the defendant [Vodacom] to pay any employee any remuneration over and above [normal] remuneration,” Fanie Cilliers, senior counsel for Vodacom, argued.
Cilliers added that Makate based his claim on a special arrangement that he be treated as an outsider on the terms he had agreed with Geissler.
He argued that the plaintiff had not provided sufficient proof that Geissler had authority to negotiate with Makate.
All payments had to be authorised in line with the budgeting procedures of Vodacom and the particular department including a chain of approval by the managing director, group finance director and chief executive.
Agreements had to be in writing to be authorised by the legal department whereas Makate’s agreement with Geissler was oral. The plaintiff testified he was fully aware of these facts, Cilliers said.
The plaintiff could not rely on an argument of “ostensible [apparent] authority” because the agreement between Makate and Geissler, as an agent of Vodacom, was not ratified by the firm.
The only body that could ratify it was the board and there was no evidence that the board was aware of the alleged promise, Cilliers argued.
He added that the alleged agreement to negotiate was not enforceable.
This claim by the plaintiff of an agreement to negotiate did not initially include a term that chief executive Alan Knott-Craig would adjudicate on the remuneration if Makate and Geissler did not reach an agreement on reasonable remuneration.
Only later did the plaintiff raise the point about Knott-Craig adjudicating in the matter.
Cilliers suggested that Knott-Craig had in any case adjudicated when he had said Makate was greedy and would not receive a cent.
This information was hearsay, which Muchenje received from Geissler and later conveyed to Makate.
Cilliers also argued that in the absence of a contractual undertaking and of a fiduciary relationship there was no obligation for Vodacom to render a statement of account about the market performance of Please Call Me to Makate.