Last call for Vodacom Please Call Me fight

SA’s largest mobile network operator, Vodacom, has filed a Constitutional Court application in a last-ditch attempt to overturn a devastating court ruling that could see the company parting ways with billions of rands.

The company confirmed the appeal on Wednesday morning in a statement, saying it has lodged its application for leave to appeal the judgement and order to the Constitutional Court.

The appeal comes after a bruising Supreme Court of Appeal judgement that could see Vodacom pays its former employee and Please Call Me inventor Nkosane Makate around R30 billion. The company’s market capitalisation is valued at R194-billion.

“As a responsible corporate citizen, Vodacom is respectful of the judicial system and abides by the laws of South Africa,” said the company in a media statement.

SCA judgement flawed

“Having considered the SCA judgement 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 judgement and order are fundamentally flawed.

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

“Therefore, as a matter of law, in its application for leave to appeal to the Constitutional Court, Vodacom makes, inter alia, the following submissions:

“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 company further argued that the SCA selectively chooses 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.

“The impact of the SCA judgement, 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.
Ruling would hit stakeholders hard

“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,” stated the company.

Vodacom argued that it has previously negotiated with Makate in an attempt to agree to reasonable compensation payable to him. The company was referring to when it offered 

“These efforts, to date, unfortunately have failed. Vodacom remains open to constructive dialogue and good faith negotiations and, without prejudice to its Constitutional Court Appeal process, to agree a fair and reasonable amount as compensation for Mr. Makate’s idea that led to the development of the PCM product. It is Vodacom’s desire that the matter be amicably resolved and brought to a timely conclusion.

The Supreme Court of Appeal judgement, delivered on February 6, ordered that Vodacom’s chief executive, Shameel Joosub, should finalise the determination of the money that should be awarded to the former staff member within 30 days.

In the judgment, judge Ashton Scheepers ruled: “The award made by the second respondent (Joosub) shall take into account the time value of money, calculated at an average inflation rate of 5%, from 1 March 2001 to 28 February 2019.”

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