Makate’s compensation amounts ‘will impact Vodacom’ if left undisputed, court hears

Vodacom has, through legal representative Advocate Wim Trengove, argued that only the company’s CEO could determine Please Call Me creator Nkosana Makate’s compensation.

The Constitutional Court (ConCourt) on Thursday heard an application for leave to appeal against the judgment and orders of the Supreme Court of Appeal (CSA) handed down on 6 February 2024.

The SCA ordered Vodacom to pay Makate 5% to 7.5% of the total revenue generated from the service from 2001.

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However, Vodacom was not convinced and announced it would approach the apex court to appeal the SCA ruling.

“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 at the time.

“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.”

‘Rule of law’

Vodacom argued that the SCA’s order impinged on the Rule of Law in terms of section 1 of the Constitution of the Republic of South Africa 1996 (“the Constitution”) and deprived Vodacom of its right to a fair trial under section 34 of the Constitution.

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It further claims the SCA “selectively” chose to only have regard to Makate’s evidence, as in the case of models for computing compensation payable to 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,” said Vodacom.

Vodacom ‘generous’ with Makate’s offer

On Thursday, Trengove argued that the R47 million compensation offered to Makate in 2019 was generous.

While the minority judgment of the SCA determined Makate’s compensation to be about R186 million, the majority judgment placed it between R29 billion and R63 billion.

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But Trengove says these amounts will significantly impact Vodacom.

“Vodacom submits that it is in the interest of justice that it be granted leave to appeal. It has reasonable prospects of success on appeal. The majority judgment, if left undisputed, will moreover have a profound impact on Vodacom, its shareholders, suppliers, customers and the societies in which it operates.”

He said the figure of Makate’s compensation depends on “the interpretation of the order. But the figure needn’t be calculated. If you look at the attachments to Mr Makate’s notice of motion, then you will see that he attaches various permutations of his order and they yield numbers ranging from R9 billion to R63 billion”.

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Trengove told the court that only the Vodacom CEO can determine “fair” compensation.