Wednesday, 2 July 2014

Judgement in Vodacom Please Call Me case out

For those not interested in my ramblings below and who are only looking for a copy of the judgement, you can find it here.

As previously reported by Profs Roshana Kelbrick and Caroline Ncube on this blog here and here, former Vodacom employee Nkosana Makate sued Vodacom for remuneration in respect of the Please Call Me concept that he claimed to have conceived whilst in Vodacom's employ.

Essentially, Makate claimed that he had concluded an oral agreement with a director of Vodacom, one Geissler, in terms of which Vodacom would test the concept and pay Makate an amount to be negotiated, representing a share of the revenue generated by the product developed on the back of the concept.  Contrary to some media reports, copyright or other intellectual property rights were not at issue – Makate’s claim was founded in contract.  Makate asked the court to issue a declaratory order confirming the conclusion of the oral agreement and directing that Vodacom enter into bona fide negotiations regarding remuneration.

The High Court in Johannesburg handed down judgement yesterday, dismissing Makate’s claims with costs.  I haven’t studied the judgement in detail but thought I’d spare you the trouble of trudging through all 100 pages by giving you the gist of it here.

Interestingly, the Court accepted that Makate had concluded an agreement with Geissler.  Vodacom denied that Geissler had authority to bind it, but Makate argued that Geissler had ostensible authority, a form of esoppel in terms of which the party against whom the estoppel is raised is prevented from denying that there was any actual authority on the basis of representations made to the contrary.  Essentially, the Court found that Makate had failed to prove the requirements for the estoppel – namely he failed to prove that Vodacom had made any representations as to Geissler’s authority or, even if it had, that the representations were such that Makate should reasonably have acted upon them.  For good measure, the Court found that Makate’s claims had prescribed too.

Litigation funders Sterling-Rand, who funded Makate’s claim, are apparently considering an appeal.  According to a Business Report piece, Christiaan Schoeman, a consultant at Sterling-Rand, said this shortly after the judgement:

“We will pay until the last available resources have been exhausted because the evidence provided by the plaintiff has been found to be true and accurate.”

Given that they've sunk a reported R2.5 million in legal costs into the matter, one can see why they might!

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