"Please Call Me" Guy Loses Court Case Against Vodacom

It has been dubbed the David Vs Goliath case of recent time here in Mzansi. Nkosana Makate, the "David" took on Vodacom ("Goliath") in court over million the company is making on his alleged brilliant idea of "Please Call Mes". The last verdict is that Makate has won the moral victory but lose out on the millions. So, he is not getting a cent from Vodacom.

Makate is the guy who came up with the idea that led to "Please Call Me" — the genius solution for those who need to reach someone, but who have run out of airtime. It enables you to send a free SMS to the person you are trying to reach, asking them to call you back.

It is now common course that  Makate came up with the idea (instead of he "claims" to have) because the court has said as much.

Judge Phillip Coppin found that the "Please Call Me" concept was based on Makate’s idea and that he "entered into an agreement with Mr Geissler on the terms he testified to under oath".

"Mr Geissler" is Philip Geissler, at the time a director of the company and its head of product development.

The "terms" of the agreement included that Makate would be paid for his idea if it proved to be feasible — technically and from a business perspective.

The court rubbished Vodacom’s version of how the "Please Call Me" idea came about and took a very dim view of the fact that Vodacom did not call Geissler, a key player in the whole story, as a witness.

Be that as it may natang is still walking away from this case with no money. WHY?

Because in order for Vodacom to be liable, the company itself had to have authorised Geissler to enter into the contract.

According to legal expert, Makate relied on what is called "ostensible authority".

The idea is that even if Geissler did not have the authority to contract on Vodacom’s behalf, Vodacom acted in such a way that Makate was entitled to rely on the contract.

The law says that if Vodacom acts as if Geissler has the authority to enter into contracts, the company can’t turn around and refuse to honour the contract just because, in reality, there was no authority. It’s called "estoppel".

But the thing is, when you rely on ostensible authority, there are certain things you have to say specifically in your pleadings (the documents that set out your case).

It may sound like a technicality, but the reason behind it is so that the other side may know what case it has to answer and can lead the relevant evidence at the trial.

Makate did not plead the necessary, said Judge Coppin. And even though litigants are allowed to amend their pleadings during the course of a trial, Makate’s lawyers — inexplicably, said Judge Coppin — waited too long to try to do that: by the time they applied to amend the pleadings, all the evidence had been traversed and only closing arguments were left.

"If the amendment had been brought earlier, the defendant may have proceeded differently," said Judge Coppin.

But in any event, said the judge, even if he had allowed the pleadings to be amended, Makate would not have made out a case of ostensible authority.

This was because he did not show the court that Vodacom (not Geissler) had acted in a way that would give the impression that Geissler was entitled to contract on its behalf.

The fact that Geissler acted as if he had authority was not relevant, it was the conduct of Vodacom that counted when it comes to ostensible authority.

Judge Coppin said the "high-water mark" of Makate’s case on ostensible authority was that Geissler was a director of Vodacom — not good enough.

Then, the final nail in the coffin: the claim had in any event also prescribed, said the judge.

When it comes to debts, the law sets time limits on when you can claim and the judge upheld Vodacom’s argument that Makate had taken too long.

So, three strikes...

  1. He entered into an agreement with an employee not the company
  2. His lawyers did not put in the correct plea
  3. He waited to long to make a claim

Haai it still doesn’t feel right, but that is the law. Apparently, a court cannot base its decision on what feels right, and the procedural requirements are there for a reason.

Nkosana Makate can still appeal the judgement, however that means he has to spend more money on lawyers. Let's home he has the cash to continue his fight.

This is a tough one, you want to root for Makate and see Vodacom as this ogre but at the end of the day, Vodacom is a business and has to protect itself just as much as Makete should have when he communicated with Geissler.

Moral of the story? Always do your homework and due diligence in terms of your rights and legal protection before pitching an idea to anyone.

I somehow think if this case was in America, Makate may have walked away with something. I am no legal expert and perhaps I watch too many tv shows about American law.

Then again, don't take my word for it, afterall this is just ... ONE GUY'S OPINION!

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