Nkosana Makate, the plaintiff in the Please Call Me case against Vodacom, smiled broadly as Vodacom’s attempt to set aside the marathon trial was denied in the South Gauteng High Court yesterday.
But no sooner had Makate’s counsel sidestepped the worst than they found themselves drawn into an even stiffer battle for victory. Makate invented the Please Call Me idea in 2000.
In an oral agreement, Philip Geissler, the executive of product development at Vodacom, promised to facilitate remuneration negotiations between Makate and the company once he submitted the idea and once it was developed and its technical and commercial feasibility were ascertained.
This agreement was made despite the fact that Vodacom did not compensate employees for their ideas above normal remuneration. Makate is seeking to compel Vodacom to discuss reasonable compensation.
He first approached the South Gauteng High Court in 2008 after letters of demand to Vodacom in 2007 were fruitless. Hamstrung by delays and funding challenges, Makate finally succeeded in bringing the matter to trial last month.
The latest complexity in the hearings, which began on July 22, is the amendments that both parties are seeking to introduce. Makate, represented by advocate Cedric Puckrin, intends to amend the particulars of the claim.
His counsel also sought to argue that Geissler had acted fraudently against Makate by “falsely informing him that MTN was suing the defendant because the plaintiff had allegedly stolen their idea”.
“The plaintiff acted upon such fraudulent representations by not vindicating his rights within a reasonable period and confirming that [then Vodacom chief executive Alan] Knott-Craig was the innovator of ‘Please Call Me’,” Makate’s counsel conceded in its papers in reference to points raised last week by Vodacom’s counsel, Fanie Cilliers.
The reference to Knott-Craig is the claim in his biography published in 2009, that he invented Please Call Me.
Cilliers questioned why Makate had sought legal action only after he left the firm in 2003, which was some time after Vodacom commercialised Please Call Me in 2001.
The question of authority is a key theme in the trial. Vodacom applied for absolution on Friday, mainly claiming that Geissler did not have the authority to make promises to Makate and that Makate’s team had not provided sufficient evidence proving their claim.
But Makate’s counsel have emphasised that Geissler had ostensible authority because Makate’s immediate superior at the time, Lazarus Muchenje, had informed Makate that Geissler had the authority to discuss remuneration.
The plaintiff claimed that Geissler, acting in the scope of his authority as a director of Vodacom, had told Makate that he had the requisite authority and in a series of e-mails, Vodacom, through Geissler, informed Makate that the agreement was being implemented.
Vodacom has discovered a letter dated March 12, 2008 in which Makate allegedly rescinded the agreement and declared that use of his idea was unlawful if the firm failed to respond to his demands by April 11, 2008.
Makate’s counsel intend to withdraw that the letter was delivered to Vodacom. Cilliers asked the court to adjourn for the day for Vodacom to find factual proof that the letter was not delivered.