Wiseman Khuzwayo
NKOSANA Makate, who is claiming damages from Vodacom for allegedly inventing the Please Call Me concept, wants to take his case to the Supreme Court of Appeal (SCA).
Yesterday, he applied for leave to appeal against the judgment of the High Court in Johannesburg yesterday.
The application was heard by Judge Phillip Coppin, who gave the original judgment that found in favour of Vodacom.
He found there was an agreement between Makate, a junior accountant at Vodacom at the time, and Philip Geissler, an executive for product development at the cellular operator.
The agreement was that Makate would hand over to Vodacom the Please Call Me concept, which Vodacom would not disclose to any other party, and if the concept proved to be technically and financially viable the parties would negotiate in good faith to establish a reasonable remuneration to Makate. Makate suggested a figure of 15 percent.
Geissler was not called as a witness for Vodacom in the trial.
Alan Knott-Craig, former Vodacom chief executive, denied he was aware of or sanctioned the agreement.
However, the court found on probabilities, Knott-Craig had knowledge of the agreement but was dismissive of remuneration to Makate because he was “greedy”.
Cedric Puckrin, senior counsel for Makate, argued yesterday Makate had proven the existence of the agreement.
He also argued Geissler had ostensible authority to enter into the agreement as he sat on the board of Vodacom, but the cellular operator misrepresented this. Geissler had, moreover, held himself out as having authority to enter into the agreement.
Puckrin also argued Vodacom was dishonest by claiming to Makate the financial viability of the product could not be verified as there was no track of detailed calls usage.
The court found previously that Makate’s claim had prescribed as it was launched eight years after the product had been introduced. A claim prescribes after three years if it has not been pursued.
Puckrin said such period could not have expired in the absence of full knowledge of Makate of the product’s financial success.
Fanie Cilliers, a senior advocate for Vodacom, put in an application for security of costs incurred by Vodacom, which was granted in the trial, against Makate.
However, Puckrin said the order for security of costs was suspended as soon as the application for leave to appeal was made.
Cilliers said Makate must prove he had reasonable prospects of success on appeal. He said the agreement was against Vodacom’s policy of not offering remuneration beyond pay.
Cilliers said Makate did not plead Geissler was estoppel from representing himself as having authority to enter into the agreement. Estoppel is a concept in law that occurs when a party reasonably relies on the promise of another party, and because of the reliance is injured or damaged.
He said Makate had no answer for the eight-year delay in instituting his claim.
Judgment will be given this week or early next week.