Please Call Me idea-man celebrates “massive victory” – MyBroadband

Vodafone has been denied access to the court in Vodacom’s continued legal battle against Please Call Me idea-man Kenneth Nkosana Makate.

Sunday Times reports that the Constitutional Court found the UK-based telecoms company, which owns over 60% of Vodacom, had not made a case to be admitted in the matter amicus curiae — a “friend of the court”.

To qualify for admission on this basis, an individual or organisation must not be a party to the legal matter at hand and be able to assist the court by offering expertise, information, or insight into the case.

However, Makate’s papers opposing Vodafone’s application accused the company of attempting to boost Vodacom’s case.

Vodafone contended that Makate had mistaken its intentions with the admission, with chief legal director Nickola Vidovich emphasising its proposed role in the case was more limited than Makate had assumed.

Vidovich said Vodafone would not be participating as a primary litigant.

In a comment to the Sunday Times, Makate called the court refusing Vodafone access a “massive victory” for him as the application was “technically tantamount to interference” in South Africa’s judicial process.

“Our argument from was that, being a controlling shareholder, Vodafone could not be an amicus, because it is a litigant in the matter through control of the Vodacom Group,” Makate said.

The legal battle between Makate and Vodacom stems from a product idea he brought to his manager in November 2000, when he was a trainee accountant at the company.

Makate suggested what he called “the buzzing option” — a way to send a missed call to someone’s phone even when you didn’t have airtime.

While the technical aspects behind making a call without airtime didn’t work out, Vodacom eventually launched a service that uses a USSD code to generate a free SMS.

Initially named “Call Me”, Vodacom thanked Makate for bringing the idea to the product development team.

After finding someone to back his case, Makate sued Vodacom in 2008, eight years after he shared the idea that would become Please Call Me.

He said he originally requested 15% of Please Call Me revenue as compensation for his idea.

After an eight-year legal battle, the ConCourt ruled that Vodacom and Makate had a verbal agreement regarding compensation, although the amount was not determined.

South Africa’s apex court ordered the parties to negotiate compensation in good faith.

During negotiations, Makate’s team demanded R20 billion in compensation. Vodacom countered with R10 million.

Foreseeing such a situation, the Constitutional Court had ordered that, in line with the original verbal agreement, Vodacom CEO Shameel Joosub should act as deadlock breaker.

Joosub returned with an offer of R47 million, which Makate labelled an “insult”.

After the negotiations failed to deliver a deal, Makate took the matter back to the High Court, which ruled in his favour.

Vodacom took the ruling on review, and the Supreme Court of Appeal (SCA) also ruled in favour of Makate.

The Constitutional Court issued a directive at the end of August stating that it will hear Vodacom’s arguments for why the apex court should hear its appeal. It also asked Vodacom to present the merits of its case.

The ConCourt is hearing Vodacom’s appeal against an order by the SCA that ruled the mobile network should pay Makate 5% to 7.5% of revenue generated through Please Call Me over 18 years, including interest.

This revenue must be calculated using the models Makate’s team presented before the court.

MyBroadband’s analysis of the court documents showed that this would have amounted to at least R29 billion.

Vodacom later confirmed that the amount was between R29 billion and R63 billion — or 13% to 28% of its market cap.

To further put that into perspective, the entire Vodacom group’s annual profit in 2023/2024 was R16.3 billion.

During the proceedings against Vodafone’s amicus application, Makate stated that Vodacom’s calculations were wrong and that the R9.7 billion he sought when the case was being heard in the Pretoria High Court in 2020 remained valid.

Makate not the Please Call Me inventor

While many have called Makate the inventor of Please Call Me, it was actually legal expert Ari Kahn who invented and patented the service on behalf of MTN.

Kahn briefed patent attorneys on Please Call Me on 16 November 2000, roughly a week before Makate proposed his idea to Vodacom.

MTN subsequently launched the service on 23 January 2001, seven weeks before Vodacom would roll out its version.

Kahn has also insisted that Makate’s idea was different from the product that Vodacom implemented and did not “even remotely resemble” the Please Call Me system that Vodacom had implemented.

He said Makate’s original “buzzing” idea was never technically possible because a call can only put a recipient’s phone in a ringing state if the caller had credit.

Vodacom only admitted that MTN had invented Please Call Me in 2019.

However, in its 2016 ruling, the ConCourt effectively ruled that it was irrelevant whether Makate was the inventor.

The ruling came down to whether the court believed there was a verbal agreement between Makate and Vodacom management, and whether those managers had the authority to conclude such an agreement.