Vodacom brand takes a beating from Constitutional Court rulling

27 Apr 2016

By: PBM

The Vodacom brand is taking serious beating from the seminal Constitutional Court ruling over the Please Call Me matter and the fallout thereof. Words and concepts like dishonourable, greedy, and harking back to apartheid era tactics jump out of the ruling.

The Constitutional Court judgement, delivered by Justice Chris Jafta, was scathing to Vodacom’s conduct, describing it as “dishonourable” in a way that is consistent with the company’s former CEO Allan Knott-Craig.

The ‘Viva Nkosana Makate’ online social movement has been unforgiving. Examples include a post by one Makhosini Nkosi. He says:

“Hearty congratulations to Mr Nkosana Makate for winning against those corporate thieves at Vodacom. Congratulations also go to the Constitutional Court for upholding Justice. Mr Makate has shown resilience and tenacity in the face of a series of court losses … I feel shame that I continued to be a Vodacom customer even when it showed it was dishonest, parasitic and that it treats its employees with disdain. Shame on me!”

Race has been thrown into the mix. Vodacom stands accused of “perpetrating the historical exclusion of black people in the imperialistic corporate complex.”

The latter tone may be seen to be flowing from Justice Chris Jafta’s words: He stated “The stance taken by Vodacom in this litigation is unfortunate.  It is not consistent with what was expected of a company that heaped praises on the applicant for his brilliant idea on which its “Please Call Me” service was constructed.

“The service had become so popular and profitable that revenue in huge sums of money was generated, for Vodacom to smile all the way to the bank.  Yet it did not compensate the applicant even with a penny for his idea.  No smile was brought to his face for his innovation.

Jafta noted that “This is besides the fact that Vodacom may have been entitled to raise the legal defences it advanced.  As a party, it was entitled to have its day in court and have those defences adjudicated.  This is guaranteed by section 34 of the Constitution.

“However, it is ironic that in pursuit of its constitutional right, Vodacom invoked legislation from the height of the apartheid era, to prevent the applicant from exercising the same right.”

The Justice added that “In not compensating the applicant and persisting in advancing the legal defences even after the trial Court had emphatically found that an agreement was concluded, Vodacom associated itself with the dishonourable conduct of its former CEO, Mr Knott-Craig and his colleague, Mr Geissler.  This leaves a sour taste in the mouth.  It is not the kind of conduct to be expected from an ethical corporate entity.”

And the Constitutional Court issued the following order:

  1. Leave to appeal is granted.
  2. The appeal is upheld.
  3. The order of the Gauteng Local Division of the High Court, Johannesburg, is set aside and replaced with the following order: “

(a) It is declared that Vodacom (Pty) Limited is bound by the agreement concluded by Mr Kenneth Nkosana Makate and Mr Philip Geissler.

(b) Vodacom is ordered to commence negotiations in good faith with Mr Kenneth Nkosana Makate for determining a reasonable compensation payable to him in terms of the agreement.

(c) In the event of the parties failing to agree on the reasonable compensation, the matter must be submitted to Vodacom’s Chief Executive Officer for determination of the amount within a reasonable time.

(d) Vodacom is ordered to pay the costs of the action, including the costs of two counsel, if applicable, and the costs of the expert, Mr Zatkovich.”

  1. The negotiations mentioned in 3(b) must commence within 30 calendar days from the date of this order.
  2. Vodacom is ordered to pay the applicant’s costs in this Court and in the Supreme Court of Appeal, which include costs of two counsel, where applicable.

The full judgement can be accessed here:Kenneth-Nkosana-Makate-v-Vodacom Consitutional Court Judgerment

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