Vodacom has stated it has no duty to comply with a court order requiring it to furnish past financial documents it no longer has in its possession.
The group was ordered by the North Gauteng High Court’s Judge Jody Kollapen two months ago to give Please Call Me inventor Nkosana Makate key documents detailing financial and contractual data spanning 18 years.
This was a mini-victory for Makate, who needed the key documents for his bid to prove that Vodacom owed him more than the R47 million that they’re offering him for his pioneering invention.
But Vodacom has asked Judge Kollapen to amend his “bad” judgment.
It has argued the order should be varied on grounds it no longer had many of the documents in its possession.
The telecoms giant had earlier filed a notice to seek leave to appeal the judgment made in favour of Makate’s interlocutory application, only to be stuck in a legal conundrum.
The conundrum for Vodacom was that interlocutory orders were not appealable. It has now brought a variation application.
“(Vodacom) would have appealed this order as being impractical and bad in law, but for the advice furnished that this part of the order may not be appealable because of its interlocutory nature,” said Vodacom’s chief officer for legal, compliance and risk, Nkateko Nyoka, in an affidavit.
Since it can’t appeal the judgment, Vodacom asked Judge Kollapen to amend his orders.
The amended order should direct Vodacom to give Makate data “only to the extent to which it has in its possession”, said the affidavit.
“(Vodacom) submits that... its obligation is only to provide such source documentation that is available,” Nyoka said.
The documents were key to Makate’s claim that Vodacom owed him no less than R20 billion.
Makate rejected an offer of R47m made by Vodacom chief executive Shameel Joosub in January last year.
Nyoka said Vodacom “conducted an extensive and diligent search” and found it had in its possession some of the contracts and financial data Makate wanted.
Scores of others were no longer available due to the passing of time.
Makate said on Monday he was still charting a response to Vodacom’s variation application with his lawyer. “The indication is that we’re going to oppose,” he said. This would be on grounds that Vodacom should not be allowed to hide financial records and key contracts.
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