Exposing legal loopholes: Vodacom challenges SCA’s ‘Please Call Me’ verdict

Vodacom is seemingly not prepared to throw in the towel over the ‘Please Call Me’ service legal battle just yet.

The telecoms giant confirmed on Wednesday that it has lodged an application for leave to appeal the Supreme Court of Appeal (SCA) judgment in the Constitutional Court.

The move comes after the SCA recently ordered Vodacom to pay ‘Please Call Me’ inventor Nkosana Makate 5% of total revenue generated from the service between 2001 and 2021.

“Having considered the SCA judgment and order, it is Vodacom’s view that there are key aspects of this matter which do not accord with the spirit of the law and that the judgment and order are fundamentally flawed,” Vodacom said in a statement.

“It is apparent from the dissenting judgment of the SCA that the majority judgment overlooked or ignored many of the issues between the parties and their evidence and submissions relating to those issues.”

ALSO READ: ‘Please Call Me’ inventor awaiting calculations after SCA sets aside Vodacom’s R47m offer

Reasons for appeal

Vodacom made the following submissions in its application for leave to appeal to the country’s apex court.

• the SCA’s order impinges on the Rule of Law in terms of section 1 of the Constitution of the Republic of South Africa 1996 (“the Constitution”) and deprives Vodacom of its right to a fair trial under section 34 of the Constitution;
• the SCA misdirects itself by considering and deciding on issues which had not been placed before it for adjudication by either Vodacom or Mr Makate;
• the SCA selectively chooses to only have regard to Mr Makate’s evidence, as in the case of models for computing compensation payable to Mr Makate, while ignoring swathes of evidence in this regard presented by Vodacom contesting Mr Makate’s version;
• the SCA orders are unintelligible, incomprehensible, and vague rendering them incapable of implementation and enforcement.

ALSO READ: ‘This issue will be resolved by the end of this year’- Malema on Vodacom ‘Please Call Me’ ruling

Bank-breaking impact

Although the exact amount Makate stands to receive in terms of the SCA order was yet to be determined, estimates suggest the payout would place him among the country’s richest businessmen.

Certainly, one man’s loss is another man’s gain. While Makate would be generously enriched, Vodacom is seemingly concerned about the multibillion pay cheque.

“The impact of the SCA Judgment, should it be upheld, would be vast and wide-ranging on both Vodacom South Africa and Vodacom Group, as well as the attractiveness of South Africa as an investment destination.

“It would negatively impact our employees, shareholders and Vodacom’s contribution to public finances. It would also have an impact on our network investment, coverage, and social programmes.”

ALSO READ: High court orders Vodacom to pay ‘Please Call Me’ inventor 5% of revenue

Leaving the door open?

Meanwhile, despite its plans to appeal, Vodacom said it remained open to ‘constructive dialogue’ and ‘good faith’ negotiations to agree on a ‘fair and reasonable’ compensation.

“It is Vodacom’s desire that the matter be amicably resolved and brought to a timely conclusion,” Vodacom said.