Pretoria - Vodacom has filed a notice for leave to appeal against last month’s “Please Call Me” (PCM) inventor Nkosana Makate judgment, in which the Gauteng High Court, Pretoria found he was short changed by the cellphone giant.
In her judgment delivered early last month, Judge Wendy Hughes gave Vodacom’s CEO Shameel Joosub two weeks to go back to the drawing board and to calculate what amount Makate was actually owed for his invention.
Vodacom instead decided to appeal the judgment and will ask Judge Hughes for leave to appeal on April 1.
In their notice filed with the court, Vodacom, in a 26-page document, cited various reasons why it believed another court would come to a different finding than that of Judge Hughes.
Vodacom will ask for leave to appeal to the Supreme Court of Appeal, or in the alternative, to a full bench (three judges) of the high court.
The judge earlier made it clear in her judgment that the calculations used by Joosub in offering Makate R47 million, for what the judge called a brilliant invention, was by far too conservative.
While she said Vodacom was in a better position than the court to calculate the true worth of the invention, she gave certain guidelines of what must be taken into account when the amount due to him is recalculated.
Vodacom, in their application for leave to appeal, said it was common cause that the process which the CEO followed (to determine what Makate is owed) was fair. According to them the CEO had gone so far as to grant the parties a hearing, which “he was not obliged, but had elected, to do.”
According to Vodacom the judge made errors in law when she made certain findings in this case. It will argue that the CEO’S determination (of the amount due to Makate) was subject to review by the court only if it was “unreasonable, irregular or wrong so as to lead to a patently inequitable result.” According to Vodacom this was not so.
Vodacom said its CEO conducted himself honestly and in good faith and he followed a fair process when he determined what Makate was owed.
“His determination was thus binding on the parties,” Vodacom said.
It will argue that the R47 million award to Makate was in fact generous.
According to Vodacom it was not open to the court to decide whether the CEO’s determination was right or wrong. “The CEO’s determination satisfied the test of reasonableness and had not shown to lead to a patently inequitable result,” Vodacom said in their appeal bid application.
Vodacom further said the CEO’s mandate afforded him a wide discretion and did not prescribe how the amount should be determined. According to the cellphone giant, the court erred when it prescribed to the CEO which calculating models must be used when turning to the drawing board to determine a new, higher amount.
Judge Hughes earlier ordered that Makate is entitled to be paid 5% of the total voice revenue generated from the PCM product - starting from March 2001 to March 2021 - and not only for five years, as earlier calculated by Joosub.
She ordered that the total voice revenue must include PCM revenue derived from prepaid, contract (both in bundle and out of bundle) and interconnect fees as set out in Vodacom’s annual financial statements.
Makate meanwhile said his camp will oppose the leave to appeal application.
Pretoria News