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Why was Makate penalised for SCA Judges' mistakes?
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Nkosana Makate has criticised the Constitutional Court for requiring him to pay Vodacom's legal costs in the latest round of his case against the operator over compensation for his Please Call Me Idea.
In an interview with the Sunday Times, Makate said he was "being beaten to the ground by the highest court in the land" for being required to pay legal costs for the Supreme Court of Appeal's mistakes.
"It's a strong message to those who litigate against giants and corporates. You're made to carry the load of a botched hearing by our own judges," Makate said.
Makate also said that he would not accept Vodacom's current compensation offer and would continue his case against the operator at the Supreme Court of Appeal (SCA).
On Thursday, the apex court overturned a controversial SCA ruling that made it impossible for Vodacom to determine an appropriate payout for Makate's idea.
The SCA ruled that Vodacom must pay between 5% and 7.5% of the voice revenue that Please Call Me generated over 18 years, plus interest.
It also ruled that Vodacom must use Makate's models to calculate the appropriate amount, which the operator calculated would be between R29 billion and R63 billion.
In considering the appeal, Acting Deputy Chief Justice Mbuyiseli Madlanga explained that such a total failure by a superior court was new ground within South Africa's jurisprudence.
In its unanimous ruling, the court found that the SCA judgment was "thinly reasoned and characterised by confusing reasoning."
At times, it also contained statements that showed a disregard for or lack of awareness about the facts and issues.
The ruling said that Vodacom's right to a fair hearing at the SCA was violated and that a new panel of judges must rehear the matter.
Due to the size of the court record, including the complexity and novelty of the issues and the very large amount at stake, the court found it "a fair and just request" that the costs of three counsel be awarded.
"Obviously, costs in this court must follow the result. About costs of the abortive SCA hearing, none of the parties is to blame," Madlanga said.
"Mr Makate himself saw the need to take the precaution of having three counsel appear for him before us. His written argument was settled by six counsel, three of whom were silks [senior legal professionals]."
Makate told the Sunday Times that he felt the ruling was "very harsh" for someone with limited resources to "fight for justice."
"[The Constitutional Court] says to me the SCA botched things without [ensuring] proper consideration, then slaps me with costs. For what?" he said.
It is important to note that Makate had submitted responding papers, which Vodacom argued had tried to make the SCA's order enforceable by vacating certain claims the original order potentially entitled him to.
Vodacom said that, in effect, Makate aimed to ensure the order was read as 5% Please Call Me revenue share plus mora interest.
"What he attempts to do… is to rewrite the SCA majority's order by ‘abandoning' select words within an order in the hope that it reads more sensibly," said Vodacom.
Makate's battle with Vodacom began in 2008, initially losing in the High Court and SAC. However, the Constitutional Court ruled in 2016 that a verbal agreement existed between Makate and Vodacom.
The apex court ordered Vodacom to negotiate with Makate in good faith to determine appropriate compensation. Foreseeing a challenge, it designated the Vodacom CEO as the deadlock-breaker.
Vodacom CEO Shameel Joosub subsequently offered R47 million for the idea, which Makate rejected as "shocking" and "an insult."
He turned back to the courts to argue for compensation of up to R126 billion, ultimately leading back to the SCA and Constitutional Court.
Makate first proposed his idea for a "buzzing option" that could send a missed call without using any airtime in 2000. Experts explained that building such a feature was technically impossible at the time.
Therefore, mobile operators explored ways of notifying subscribers that someone wanted to call them without going through the call setup procedure, such as USSD and SMS.
MTN was first to patent a USSD-based Please Call Me service, which it launched on 23 January 2001. Vodacom rolled out a similar service several weeks later.
Vodacom later acknowledged that MTN was technically the inventor of the service in its ongoing legal battle with Makate.
In an interview with the Sunday Times, Makate said he was "being beaten to the ground by the highest court in the land" for being required to pay legal costs for the Supreme Court of Appeal's mistakes.
"It's a strong message to those who litigate against giants and corporates. You're made to carry the load of a botched hearing by our own judges," Makate said.
Makate also said that he would not accept Vodacom's current compensation offer and would continue his case against the operator at the Supreme Court of Appeal (SCA).
On Thursday, the apex court overturned a controversial SCA ruling that made it impossible for Vodacom to determine an appropriate payout for Makate's idea.
The SCA ruled that Vodacom must pay between 5% and 7.5% of the voice revenue that Please Call Me generated over 18 years, plus interest.
It also ruled that Vodacom must use Makate's models to calculate the appropriate amount, which the operator calculated would be between R29 billion and R63 billion.
In considering the appeal, Acting Deputy Chief Justice Mbuyiseli Madlanga explained that such a total failure by a superior court was new ground within South Africa's jurisprudence.
In its unanimous ruling, the court found that the SCA judgment was "thinly reasoned and characterised by confusing reasoning."
At times, it also contained statements that showed a disregard for or lack of awareness about the facts and issues.
The ruling said that Vodacom's right to a fair hearing at the SCA was violated and that a new panel of judges must rehear the matter.
Due to the size of the court record, including the complexity and novelty of the issues and the very large amount at stake, the court found it "a fair and just request" that the costs of three counsel be awarded.
"Obviously, costs in this court must follow the result. About costs of the abortive SCA hearing, none of the parties is to blame," Madlanga said.
"Mr Makate himself saw the need to take the precaution of having three counsel appear for him before us. His written argument was settled by six counsel, three of whom were silks [senior legal professionals]."
"[The Constitutional Court] says to me the SCA botched things without [ensuring] proper consideration, then slaps me with costs. For what?" he said.
It is important to note that Makate had submitted responding papers, which Vodacom argued had tried to make the SCA's order enforceable by vacating certain claims the original order potentially entitled him to.
Vodacom said that, in effect, Makate aimed to ensure the order was read as 5% Please Call Me revenue share plus mora interest.
"What he attempts to do… is to rewrite the SCA majority's order by ‘abandoning' select words within an order in the hope that it reads more sensibly," said Vodacom.
Makate's battle with Vodacom began in 2008, initially losing in the High Court and SAC. However, the Constitutional Court ruled in 2016 that a verbal agreement existed between Makate and Vodacom.
The apex court ordered Vodacom to negotiate with Makate in good faith to determine appropriate compensation. Foreseeing a challenge, it designated the Vodacom CEO as the deadlock-breaker.
Vodacom CEO Shameel Joosub subsequently offered R47 million for the idea, which Makate rejected as "shocking" and "an insult."
He turned back to the courts to argue for compensation of up to R126 billion, ultimately leading back to the SCA and Constitutional Court.
Makate first proposed his idea for a "buzzing option" that could send a missed call without using any airtime in 2000. Experts explained that building such a feature was technically impossible at the time.
Therefore, mobile operators explored ways of notifying subscribers that someone wanted to call them without going through the call setup procedure, such as USSD and SMS.
MTN was first to patent a USSD-based Please Call Me service, which it launched on 23 January 2001. Vodacom rolled out a similar service several weeks later.
Vodacom later acknowledged that MTN was technically the inventor of the service in its ongoing legal battle with Makate.
Source - sundaytimes
