ITWeb contributor Phillip de Wet.
The villain of the moment is the Supreme Court of Appeal (SCA), which really, deeply, and utterly screwed it up.
But at heart, the Please Call Me saga is the fault of lawyers, or rather the two pig-headed clients, Vodacom and Nkosana Makate, who should have stopped listening to those lawyers long ago.
Makate and Vodacom started with what boils down to a simple contractual dispute: Makate handed over some intellectual property (the idea for Please Call Me) and wanted a cut of the proceeds.
Had Vodacom taken that claim seriously from the outset, it could have dropped a hundred million rand or so on Makate, a rounding error on its books, and everyone would have moved on long ago. One still relatively young man’s life would have been changed forever, very many executives would not have wasted vast amounts of their highly-remunerated time, and no reputations would have been harmed too badly.
But Vodacom never seemed to really believe Makate was the inventor of Please Call Me. To this day it acts, institutionally, as though affronted by the fact that he won that argument, as if it has a moral duty to hand over the absolute bare minimum amount of money it possibly can to a pretender who got lucky.
Somewhere along the way, a lawyer told Vodacom it could get away with offering Makate R10 million, and it listened.
Now, maybe there was a strong legal case to be made for that offer, just as there may have been for the R47 million number Vodacom later came up with. It was long past being a legal matter by that time, though, and in the broader context it was an idiotic number.
Makate has been embroiled in this thing for a significant part of a productive lifetime.
Makate, in the meanwhile, had been told he was sitting on a gold mine, that there was vast wealth to be had. His lawyers and funders may have accused each other of all kinds of dirty dealings, but they all smelled money. They pushed, he listened, and demanded well over R20 billion, a ludicrous number.
I’ve spoken to many of the key players on both sides over the years and I can tell you they are neither crazy nor idiots. They may have grown rather emotional about a commercial dispute, but had they chased off the lawyers and sat down to negotiate, I daresay they could have reached a deal.
God knows South Africa has seen harder negotiations than that succeed.
Instead, I imagine, their lawyers urged them to stick to strict definitions and defendable positions in anticipation of more litigation. Lo and behold, they summoned exactly such further litigation into being. Thus, Makate has been embroiled in this thing for a significant part of a productive lifetime. Vodacom’s reputation keeps getting dragged through the mud at every stop of the legal wheel.
You have to hope it is never too late to stop listening to the lawyers, because another good time would be right now.
The Constitutional Court – which is deeply invested in keeping up the appearance of a competent judiciary – absolutely tore into the SCA for suggesting that, with Makate and Vodacom failing to reach a deal, Makate was “automatically entitled to whatever he asked for”.
In this case, many hundreds of billions of rands.
The key quote from the ConCourt is that the SCA is “guilty of failing to assess evidence or being unaware of evidence”. This is not a court that uses the language of criminal conduct lightly; when it says another court is “guilty”, everyone involved knows what it means.
Having been mortally embarrassed by that finding, the judicial system will now move at a glacial pace in dealing with what has become a Byzantine maze of numbers and models and financial assumptions. No judge will make a single leap of logic, and no assessor will offer an opinion that is not wrapped in three layers of caveats.
It is going to be a long, long trudge towards anything that is not a negotiated settlement.
