Business Maverick

RINGING OFF THE HOOK

Key questions remain but, more critically, where is Nkosana Makate’s Please Call Me patent?

Key questions remain but, more critically, where is Nkosana Makate’s Please Call Me patent?
Illustrative image | Nkosana Makate; a phone receiving the Please Call me SMS. (Photo: Gallo Images / City Press / Leon Sadiki | Kyra Wilkinson)

The truth is finally coming out about the long-running Please Call Me saga and the missing key ingredient is proof that Vodacom’s trainee accountant actually invented the call-back service and didn’t merely plagiarise the concept Ari Kahn patented.

If Nkosana Makate invented the Please Call Me service, the subject of the ongoing 15-year-old court case between him and cellphone company Vodacom, where is his patent? Or even his application for one?

The only patent application was submitted by former MTN engineer Ari Kahn and filed with the Patent Office on 22 January 2001. His patent was awarded the same day. Kahn briefed MTN’s legal representatives on 16 November 2000, having conceived of the idea the day before.

While Makate was a trainee accountant at Vodacom, Kahn was already developing highly technical solutions as lead data consultant at MTN from 1994 to 2002. He worked on a range of cutting-edge ideas for the then-nascent mobile industry, including a website that allowed anyone to send free SMSes to mobile numbers. In short, Kahn had the technical know-how to solve the then-complex technology problem.

Read more in Daily Maverick: R47-million not enough – Vodacom left seething after court orders a bigger payment to Please Call Me inventor

This month the Supreme Court of Appeal (SCA) ordered Vodacom to pay Makate between R29-billion and R55-billion for an idea he said he conceived of. This is significantly higher than what the Constitutional Court previously ordered in the long-running Please Call Me (PCM) saga. The apex court stipulated that Vodacom CEO Shameel Joosub had the final say in what Makate should be paid and offered R47-million.

But the SCA judgement reads that Makate “is entitled to be paid 5% – 7.5% of the total revenue of the PCM product from March 2001 to date of judgment …. together with the mora interest thereon”. No lower court should overrule the Constitutional Court, which appears to be the case in this drawn-out dispute.

With a market cap of R200-billion, the lower R29-billion figure represents nearly two years of Vodacom’s annual dividend payouts of around R13-billion to R14-billion, according to the network’s figures. It is a staggering amount for a concept that has no patent behind it.

Origin stories

Kahn came up with the idea, he told me in an email in 2019, when he was dealing with his own frustrations at the time. He said he was getting as many as 40 voicemails a day, mostly from people who left him a message to “call me”.

Kahn is a legendary figure in the mobile industry in South Africa. He worked on “three world firsts,” he told me. “Callme”, as he first named it, was the third of these and he had the idea on 15 November 2000.

The dates are important here. Kahn patented it — through MTN’s lawyers Spoor and Fisher on 22 January 2001 — as a “method and system for sending a message to a recipient”.

The next day the service was launched, about which Kahn jokes that he “injects Callme virus into MTN”.

Two days later, on 25 January, “Callme skyrockets to 1.5m messages,” he added.

It was a runaway success and is now as essential a part of the South African cellular landscape — which allowed someone to send a free SMS (which back then cost R0.25) and for the receiver to then make a call.

“In the first month, Callme reached market saturation,” Kahn told me. “Growing at an astronomical rate of ‘hundreds of thousands of new users a day’, Callme was the fastest service adoption ever recorded in the history of telecoms and Internet, then and to this day.”

Makate would not directly address Kahn’s patents. “Mr Kahn was, according to Vodacom, lined up as a witness during trial in 2013. Vodacom, after CEO at the time, Alan Knott-Craig[’s] testimony decided not to call him,” Makate told me via WhatsApp this month.

“Frankly he could have become a friend of the court if he wanted to. Alan Knott-Craig, the ‘inventor’ according to Vodacom[’s] position in court, said Vodacom was FIRST and that the MTN product was clumsy. I think he is a person you would also like to talk to because this was said in his testimony in court.”

He added: “That is all I can say [to] you.”

When pressed on whether he had filed a patent, Makate refused to directly answer multiple questions. “Surely only Vodacom knows why they ultimately decided not to call Mr Kahn as their witness as promised in court; this Vodacom can answer. Mr Kahn himself can answer why he did not become a friend of the court even if Vodacom decided not to call him,” Makate wrote.

When asked again about a patent, he replied: “I have said what I need to say. I will not enter into a public spat with Mr Kahn. He had an opportunity to come to court in 2013 as a friend of the court and as a witness that Vodacom promised the court.”

Leaked

Kahn thinks the idea was leaked after he briefed MTN’s legal representatives on 16 November 2000. Five days later, on 21 November 2000, Makate sent his “buzzing option” memo to his boss Lazarus Muchenje, according to Vodacom’s own records.

Muchenje referred him to then director of product development Philip Geissler, who later concluded a verbal agreement that Makate would 15% cut of any revenue from the concept. Vodacom has since argued that Geissler, then also on the operator’s board, was not empowered to make such a deal.

Kahn and MTN were granted the patent by the Patent Office on 22 January 2001 and MTN sent its first Please Call Me text the next day, on 23 January 2001.

Three weeks later, on 9 February 2001, Vodacom announced its launch of the “Call Me” service, which it described as a “world first” and credited Makate with the idea, according to the operator. It only sent the first message the next day, on 10 February 2001.

That is 13 weeks after Kahn briefed Spoor and Fisher; and three weeks after the patent was granted and MTN sent its first Please Call Me SMS. That clearly does not qualify as a “world first”.

Vodacom said it will appeal the SCA’s 6 February judgment. “Vodacom is surprised and disappointed with the judgment and will bring an application for leave to appeal before the Constitutional Court of South Africa within the prescribed period,” a spokesperson said.

Disputed origins

Vodacom’s key legal mistake appears to have been an unwillingness to acknowledge that the Please Call Me idea wasn’t its own. This is unsurprising given the fierceness of competition between the two operators at the time – and the egos involved.

Founding Group CEO Allan Knott-Craig even claimed in his autobiography Second is Nothing that he came up with the idea himself, while watching two security guards without airtime trying to make a call. He later admitted during his 2013 court testimony that he had not invented it.

The operator boasted in its internal magazine in 2001 that the new “call me” product was “thanks to Kenneth Makate from our finance department. Kenneth suggested the service to the product development team, which immediately took up the idea… ‘Call me’ has been a big success”.

This hubris – and failure to acknowledge MTN had beaten it to market with Kahn’s patented idea – has come back to haunt Vodacom’s new management.

Vodacom admitted as much to the Sunday Times in 2019 that “It had already been invented and subsequently patented by MTN. In fact, MTN launched its version, called Call Me, the month before Vodacom did”.

But Vodacom never presented this as part of its legal defence and as such was never before any of the courts that ruled on the dispute. Once the Constitutional Court ruled that Makate had invented it, however factually untrue, this is all moot.

Kahn contention that the idea was leaked when he briefed Spoor & Fisher has been mentioned to me by numerous other telecoms executives at both MTN and Vodacom. This fits the timeline, with Makate’s memo coming six days after Kahn’s briefing.

An MTN executive, who asked to remain anonymous, explained to me that the cellular operator, now the biggest in Africa, “chose not to defend it because it looks like two big companies fighting”.

“At the time our lawyers said we had a strong case to make but intellectual property law tends to move on a dime. One technical error, one spelling mistake, and the whole thing gets drawn into questions,” the executive continued. “At the time the view was this is not a product that is not going to make money. It was meant to be a product to help the poor.”

Of Vodacom’s clumsy claim to have developed the idea itself, the executive added: “When you are in a hole, stop digging”. DM

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Comments - Please in order to comment.

  • Roggers Mamaila says:

    How do you patent something you contribute to your employer as an idea?

    • Bob Dubery says:

      I thought about that, because everywhere I’ve worked in the last 40 odd years there’s been a clause that says that any thing I “invent” at work becomes the employer’s IP. BUT employers want their staff to have bright ideas that save the employer time and make them money. So they may offer an incentive if you come forward with something that is novel and will have a significant positive affect on the bottom line.

      What seems to have happened her is that such a promise was made to Makate, but by somebody not authorised to do so.

      I’ve always been leery of such incentives, because once the idea is implemented it can be very hard to prove that the idea originated with you. Unless you can pay for a team of forensic auditors, having first got the necessary permission from court, and good luck to you on that and being able to afford it.

  • Dominee Ndlovu says:

    This, this is some b.s journalism right here 😅, it can’t be a coincidence that a nail is hammered on Vodacom and all of sudden there’s a flood of articles discrediting Makate, strings have been pulled here to build a narrative.

    • Kenneth FAKUDE says:

      I agree with you, if have an idea I will put it into test then patent it, if I give it to my employee to test run it and money is made I have every right to be treated as a share holder more so if my job description does not involve creating ideas for the company.
      How long I test run it before a patent it’s entirely up to me as there is no legal prescription to that.
      Vodacom knows it clearly that is why they never put it on defense.
      The question is how much money did the idea make.
      This is not the same as introducing a measure in your line of duty where the innovation will create a procedure that will save the company money.
      How many companies pay consultants for ideas?
      Khan or who ever it is unknown at Vodacom because he never brought any idea to Vodacom.
      How many times do you think of an idea then you see it implemented?
      Law is common sense with a lot of acts and years of implementation but the facts stay the same.
      The minute people see Makate from a location they already see a thief, a thief of one specific idea, then he repents.
      Let’s get out of the mentality of associating a certain ethnic group of theft because that is what is being insinuated here.
      Stop 🛑.

      • Amadeus Figaro says:

        The mistake is to associate the theft with Makate instead of the only persons who are likely to have played golf with the lawyers which AKC, Geissler etc or the only people with resources to spy on MTN at the highest level which is again AKC.

        The truth of the matter is AKC credited Makate with the idea for PCM which was not Makate’s idea because we all know Makate’s idea was the “missed call ring” idea called Buzz. The question is why? And the answer is simple to provide a trail of invention, that is ideation to product launch to be used in case MTN went to Court.

        Would Makate’s being black work in Vodacom’s favour. It being SA yes. Even the judges could not help themselves when it came to that.

        We are looking at the mess caused by two white executives who have not received enough slack for their incompetence and dishonesty.

      • A K says:

        Actuallu in South Africa as an employee you have no such rights.

        The SA Patent Act states that anything an employee contributes belongs to the employer and the employee is not entitled to any additional compensation. Period.

        • Kenneth FAKUDE says:

          Do you think if that was applicable Vodacom would have ignored it, we always create innovations for my company and we get rewards on every implemented one.
          It also depends if you used company resources for your idea.
          No company with values will take your idea, make billions and not reward you.
          We get bonuses for what we are employed to do and get salaries for every renumeration date.

          • Amadeus Figaro says:

            It was applicable and Geissler made mention of it. And promised Makate a reward not a contract. Vodacom did what it did with MTN potentially suing them in mind.

            Every move, email was calculated towards that possibility. Makate was unwittingly and unknowingly being used in Vodacom’s nefarious scheme.

            He is a victim as much as he is a beneficiary of AKC’s theft from MTN.

          • A K says:

            Not the first own goal by Vodacom Counsel.

            Makate persuaded the Court that what he “contributed” (Buzz DOA) was “Outside the scope” of his employment when the SA Patent Act has no such provision.

            “Out of scope” and “normal duties” are provisions under USA/UK Law not SA Law.

            You would think the Constitutional Court would know the actual Constitution. Beyond embarrassing they do not.

      • T'Plana Hath says:

        There’s that persecution complex again …

  • Rory Mishika says:

    By Googling the following text, the article references can be found, as external links are not permitted in posts.
    Bill Gross V Google: “bill-gross-guy-invented-google-120044415”
    Constitutional Court Judgement Makate V Vodacom 2016: “Makate v Vodacom (Pty) Ltd (CCT52/15) [2016] ZACC”
    Alan Knott-Craig Court Appearance – August 2013 “knott-craig-unravels-in-please-call-me-case”

  • Paul T says:

    Most of this doesn’t make any sense. Firstly, any ideas by the employee of a company that end up being executed by that company become the property of the company, right? Secondly, when an idea is relatively obvious it can germinate in the minds of multiple people in various forms more or less simultaneously. Thirdly just having an idea doesn’t mean you have the capability to execute it. Makate didn’t have the network infrastructure, the engineers or the millions of customers to make the idea a commercial reality. Every true entrepreneur knows that ideas are very easy to throw around but very hard to execute. The judge’s ruling sounds ludicrous.

    • Steve Davidson says:

      Exactly. While it’s probably a bit unfair, that’s been in every employment contract I’ve ever signed.

    • Bernhard Scheffler says:

      Indeed, Paul. I attended a course by Don Pilkington, then President of the SA Institute of Inventors, Innovators, Research & Development, and have registered several energy related patents & provisional patent in SA and abroad.

      Don asked and answered the question: “Say you have a brilliant idea! How much is it worth??”

      His aswer: “Absolutely nothing”. For exactly the reasons you list here. He added that fewer than 1% of “brilliant ideas” become products.

      • Rory Mishika says:

        I guess that Nokosana Makate’s PCM innovation is in that ‘1% of brilliant ideas’ then Bernhard. Just ask Vodacom or the Supreme Court of South Africa how brilliant it was…

        • Bernhard Scheffler says:

          The judge doesn’t know or understand anything about the relevant topic. Didn’t do his/her homework properly.

          Makate got much more than he deserved — and still complains! Sadly this is a typical story in SA now!

          • Rory Mishika says:

            Sadly many people posting misinformed comments on this PCM saga didn’t do their homework either Bernhard. Vodacom certainly got what they deserved of the billions that PCM generated for them, and he wants them to honour what they agreed to pay him. What’s a typical story in SA, is how many unsavoury characters use the judiciary to try and avoid justice, because they have the financial muscle to do so, for as long as possible until they are finally brought to book. Makate is no grifter like you are implying, and he deserves to to be compensated fairly for his brilliant innovation.

        • A K says:

          Makate proposed a Buzz Ring which was DOA and had absolutely nothing todo with the Callme Text Messaging Service.

          Go and read the Kahn Callme Patent.

          It is memorialized in the SA Patent and Trademark Office.

        • A K says:

          Kahn Patents? 100+
          Makate? Zero.

          Makate, the patent troll without a patent.

    • Rory Mishika says:

      The SA telecoms industry back in 2000 was in it’s infancy in 2000 Paul, so many aspects of company/employee weren’t formulated at that time. Neither party had any idea that Nkosana Makate’s brilliant idea was going to take off as it did, or that it would make billions for Vodacom over the next 20 years , while he got nothing. He wasn’t employed by them in sales or marketing, where one could argue that their inspiration belonged to Vodacom, as they were being paid to do that job. He was working as a junior accountant in their finance department at the time, so not involved with generating new-business revenue initiatives.

      With the benefit of 20 years hindsight, PCM seems obvious now, but it wasn’t then. It’s common cause that Vodacome recognised Makate as the originator of the PCM idea, and by offering him R47M for it, they were finally admitting that he was actually due some reward, which should have some semblance of fairness to what they earned out it. As to the argument that Vodacom had the network infrastructure, engineers, customers etc. to make PCM a success, that’s a given, as long as you also accept that his innovation generated billions for them in revenues, when he brought the idea to them. Ari Kahn admits in Toby’s article that it took MTN one day to execute his Call Me idea, from him having it the previous day, so presumably there was very little ‘tweaking’ required to MTN’s infrastructure to make it a reality. Vodacom needs to face the music and pay up.

      • Samuel Ginsberg says:

        Except that Makate’s idea wasn’t implemented!
        If MTN were to sue VC they would have a solid case. But Makate should only get a portion of the profits from his idea… Which is zero because it couldn’t be implemented.

        • Rory Mishika says:

          Well Samuel, the courts wouldn’t agree with you, or indeed, Vodacom’s very expensive lawyers, who failed to convince them that he shouldn’t get anything either. I suspect that Ari Khan is looking for his ‘one more day in the sun’ before finally fading into obscurity…

      • William Stucke says:

        > The SA telecoms industry back in 2000 was in it’s (sic) infancy in 2000 . . .

        What nonsense! The first GSM call was made in 1991, in Finland. Vodacom and MTN both got their MNO and spectrum licences in 1993 and launched their services in 1994. It was expected that the initial market would be quite small, maybe 500,000 customers. However, because Vodacom were able to launch a few months early than MTN, the then Regulator only allowed Vodacom to sell 10,000 SIMs before MTN launched.

        This created an artificial scarcity, which served to drive up the perceived value of having a cellphone. As a result, all 10,000 SIMs were sold out on the first day! By 1997, there were 1 million cellular subscribers in South Africa, 660,000 of which were Vodacom’s. Hardly a market in its infancy by 2000, when there were 8,339,000 subscribers, according to the World Bank.

        By then I’d been running an ISP for 4 years and was quite cognisant of the industry in RSA and the rest of Africa. It’s also around then that I had to suddenly stop sending my dial-up customers an SMS telling them that they’d received an email, its subject line and the sender, as first one then the other network started charging for SMSs.

        An innocent, undeveloped market? Hardly!

        • Rory Mishika says:

          Thanks for the heads-up William. I also recall very well the lie of the land in South Africa back in the late 1990’s when you had to buy pre-paid airtime on scratch cards, which were distributed for Vodacom by Blue Label. Lots of exciting new innovations then including PCM, which was a godsend to millions of South Africans, who aspired to share in Madiba’s vision of a better life for all. They were exciting times and full of hope back then…

  • Tumelo Tumelo says:

    Mr Knott-Craig is dishonest, he has a nodding acquaintance with the truth at best only in a leap year. To characterise Vodacom’s claim as clumsy is also dishonest- this dishonesty will most likely cost them an indecent amount of money and I hope Mr Makate enjoy every single penny. Good on you!

  • quintin.davis says:

    Quite simply. We know Makate didn’t invent this. He had an idea, and Vodacom engineers made it happen.

    BUT… the arrogance, the mendacity and sheer incompetence that Vodacom has shown over these years in dealing with this issue, deserves to be punished. Could have given this guy R500k in 2001 (which was a lot of money), and it would have been done.

    Instead, they bullied him. Alan Knott-Craig lied in his own book. And they tried to low ball him. So now, unfortunately they need to cough up. They need to pay for their corporate arrogance.

    “What a wicked web you weave, when first you practice to deceive.”

    • Amadeus Figaro says:

      There was no way he would have accepted R500k after Knott Craig the incompetent manager and thief had credited him with PCM.

      Vodacom gifted him an invention, and who was he to look a gift horse in the mouth.

  • Samuel Ginsberg says:

    You refer to it as a brilliant invention… But the idea that Makate put forward was not technically feasible and the idea that was implemented was a copy of Kahn’s. Just that alone should invalidate any claim.
    I once suggested to my employer that they use tissue paper in the bathrooms instead of towels. They promised me a share in the savings. They then installed airdryers. Am I entitled to anything?

    • Rory Mishika says:

      Sam, it’s common cause at this stage that Makate’s innovation was brilliant and that Vodacom made billions out of it, while he got nothing. As to your question about whether you should be compensated for your ‘toilet paper’ suggestion to your company, they might think it’s…not great.

      • Samuel Ginsberg says:

        What I’m saying though it’s that Makate’s invention was never used because it wasn’t feasible. What was used was MTN’s intellectual property.

        • Rory Mishika says:

          Sam, please do your research on what you are saying here. Vodacom’s CEO claimed that PCM was his innovation, and that MTN/Ari Khan’s one was ‘clumsy’ and was different from what Vodacom implemented. This was debated many times in court. The very serious problem that Vodacom has now is what to do next, after losing some important cases in PCM, in Makate’s favour. They have certainly behaved deplorably towards him at every opportunity, and they deserve to be held accountable. They are constantly using media hacks to write ‘puff-pieces’ to deflect from the real issue here, that they made billions of Makate’s PCM innovation, but they want to pay him zilch for it.

          What’s being argued now in court the quantum of what Makate should be paid, rather than regurgitating old allegations by Ari Khan/Vodacom, to try and deflect from this, in an attempt to muddy the waters.

  • I already pay 45 + 15% on every extra rand earned. Enough is enough

  • Agf Agf says:

    Never mind the R29 billion which he has been awarded, which is in any case a ridiculous figure which no reasonable society should entertain. More important is the R250 billion which Vodacom earned in that time period just from this one feature. To me this illustrates the obscene nature of the earnings of the cellphone companies AT THE EXPENSE OF THE CITIZENS OF SOUTH AFRICA. I have children and relatives and friends who live in various parts of the world and without exception they are blown away at the rates we pay for our cellophane service in this country. Particularly when it comes to data we are being royally ripped off. My son in Germany has unlimited data and unlimited minutes for about a third of what you would pay here. Don’t even get me started on buying data here and it expires after 39 days. You buy something and 39 days later it’s gone. No carry over. It’s criminal.

    • Grant S says:

      100% correct. An argument so solid it would appear to be common sense and completely reasonable. But when corporate giant collude to maintain the status quo (or at least one of them doesn’t do the right thing which would force the others to follow), we get poked as consumers.

    • Samuel Ginsberg says:

      Not to dispute the price of our services, but the R250bn figure is also under dispute. If it’s true it’s breathtaking.

  • Wayne Kitching says:

    Makate should have accepted a settlement. To give another example (and I know it is a different country and a different legal system), Shuji Nakamura, the invertor of the blue LED and co-recipient of the 2005 Nobel prize for Physics, sued his employer, Nichia, who then settled by paying him “only” $8m after successfully appealing the court’s order of paying him $200m. The invention had earned Nichia $500m at the time. This was after years of working on it for long hours without taking a holiday.

    • Anne De Wet says:

      Makate is greedy – he was offered a settlement of many millions which he refused because he wanted more – what have these protracted court proceedings cost the company and at this stage, the only winners are apparently the legal boys!!!

      • Rory Mishika says:

        Vodacom is greedy – They made billions from Nkosana Makate’s PCM innovation, yet they tried every trick in the book to pay him zilch. The judicial system has benefited hugely from this case, as many of the arguments debated, will form part of case law in South Africa and around the world, for centuries to come. It also gives hope and a message to the ordinary folks out there, never to give up on fighting for what’s right. We need that type of hope in South Africa today against the relentless tide of malfeasance and corruption that plagues our beautiful country.

        • A K says:

          “The judicial system has benefited hugely from this case”?

          Really? Let’s see how …

          The 2016 Con Court Ruling has sanctioned an employees right to hold their employer ransom to any idea when the SA Constitution per the SA Patent Act stipulates that “anything an employee contributes is automatically the property of the employer”.

          That an employee has no IP rights and is not entitled to any additional compensation.

          The Con Court failed to apply the Constitution.

          There is no such provision as “Outside the Scope” ot “Normal Duties” under SA law.

          Those are constructs of USA/ UK law!

          “The legal fraternity will suffer the consequences and agony of this ruling for decades to come.” — Malebakeng Forere, Assoc Law Professor, WITS.

          Benefitted hugely indeed.

          • Rory Mishika says:

            Ari, the PCM case judgements have benefited South African case law in many positive ways. Ask any legal expert, and they will tell you.

      • Kenneth FAKUDE says:

        Depends, looking at all sides Vodacom has not been honest on how much they made on PCM, their profit data excludes data transactions where a person sends a call request and the response is in data charges, ie you send a pcm I respond with a video call for 1gig which is R85.
        Why be economical with those earnings?
        To show that the answer does not need a rocket scientist, the judge understood the motive and awarded according to the complainant who brought all the figures.
        You cannot dispute figures brought by a complainant without presenting opposing figures.
        Withhold information to the court which you have will lead to a nail in the head.
        The amount is crazy for who? Makate? but when Vodacom shareholders earned billions it was normal? Ey we have a problem.

  • Tim Ball says:

    MTN’s parallel development and patent application was a red herring in the original case on the validity of the contract, which is probably why Kahn wasn’t called as a witness.
    However, when it comes to the CEO’s price determination , it illustrates general issues with the valuation of unprotected business concepts that were not considered by the court in the latest judgment.

    • Rory Mishika says:

      Tim, the question that should be posed to Ari Khan, is ‘which side would he have appeared for’ in the case? If it was Vodacom, he would have exposed Alan Knott-Craig’s lies about being the originator of the PCM idea, instead of Makate. He even dissed Ari Khan’s Call Me idea as ‘clumsy’ which would have gone down like a lead balloon with the ‘IT legend’. There’s no way that AKC would want Kahn anywhere near the stand, and obviously though ‘I’ve got this’ when testifying on the stand, before being severely mailed by Makate’s advocate Cedric Pukrin. His picture coming out of court afterwards speaks volumes about his demeanour after that ordeal…By lying about it, he destroyed his legacy for ever.

      • Samuel Ginsberg says:

        I feel that Ari Kahn should be called to give testimony, whichever way that falls.
        I think VC’s problems all stem from trying to get away with swiping MTN’s idea.

        • Rory Mishika says:

          I’m sure Ari Khan had ample opportunity to insert himself as ‘a friend of the court’ to give his testimony alongside Alan Knott-Craig, which would have been an interesting display of ‘peacocking’, between two telecoms ‘legends’.

          What do Vodacom management have to say about your suggestion Samuel?

  • Manie Mulder says:

    “If anyone cares to read the Constitutional Court judgement in Nkosana Makate’s favour ( you can read it here”
    That does not link to the case mentioned. The link is incorrect.

    • Rory Mishika says:

      Hi Manie, you are correct and apologies for that. If you want to see the CC judgement on the case (which is an informative read), please Google “Makate v Vodacom (Pty) Ltd (CCT52/15) [2016] ZACC” and you’ll find it.

  • Sydney Kaye says:

    The concept that someone who has an idea is entitled to a share of the profit it makes indefinitely through another party taking it up, conflicts with the reality of the business world. Ideas are two a penny and mostly go nowhere without technical, management and business skills together with sufficient finanancing. In this case while the raw idea had a value (although it seems unlikely that no one else at the time was contemplating it) its exploitation, growth and success would have been by virtue of many different factors.
    Although this has been decided by the courts, it is strange that the product of an employee in the course of his employment did not belong to the employer, and even if there was an agreement with another employee, the parties could never have been in one mind as to the consequences.

  • Eddie B says:

    Toby is making some valid points here, contrary to Rory Mishika’s view. The defense should have challenged Makate’s claim as the inventor. It is indeed a miracle that Makate came up with this idea – out of the blue – so shortly after MTN had conceived and developed the same concept. On the face of things it sounds more like pure opportunism. In plain English, he saw a gap and took it. Yes, management offered him compensation BUT are you entitled to compensation if your “invention” is based on falsehood?

    • Rory Mishika says:

      Eddie, who’s side would you say Toby is batting for in his article? Alan Knott-Craig, the CEO of Vodacom claimed he was the inventor of PCM, so in his eyes it should have been ‘case closed’. He thought that the court would believe his lies….but they didn’t. Makate gave a credible account of how he came up with the PCM idea, which Vodacom now accepts after numerous legal attempts over the years to deny this, and his right to fair compensation, commensurate with the profits that they made from it. You are not obliged to agree with my opinion, as long as you can refute them, with the facts of the case, which are in the public domain. Ari Khan’s insinuations that Makate/Vodacom ‘stole his idea’ after a ‘leak’, within 5 days of him discussing it with Spoor and Fisher, is preposterous and lacks credibility. Makate’s quest for justice has stood up to scrutiny against all the odds, and he deserves to be compensated fairly. He’s not the villain here, like Toby would have his readers believe with his pro-Vodacom article.

  • Geoff Coles says:

    Rory, you protest too much,

    • Rory Mishika says:

      I’d have to disagree with you there Geoff. In fairness, judging by the number of pro-Vodacom puff-pieces that Toby has been pumping out lately on various media platforms, you could almost be forgiven for thinking that he’s doing a better job than their spokesperson, Byron Kennedy, at getting the Ari Kahn – Where’s Makate’s patent? story out to as many South Africans as possible.

  • Trevor Gray says:

    Vodacom sure screwed the pooch on this one!

  • Timothy Van Blerck says:

    Lets not forget Alan Craig Knott also pretending he invented please call me in his autobiography – must be something interesting they add in the VC watercooler!

    https://mybroadband.co.za/news/cellular/85679-vodacom-please-call-me-knott-craig-tells-full-story.html

  • Angela Lambson says:

    15 years. R47 million. Surely that’s more than enough time and money spent on this issue? Whoever is right or wrong, it is inconceivable that any individual, anywhere in the world, could expect to profit in the billions (had to rub my eyes when I read that) for this idea. And even more inconceivable that the court could make such a staggering ruling and that one man intends to hold out for such a payout. Ridiculous that this boardroom spat has been allowed so much oxygen and what a dismal example to all the students still awaiting funding from NSFAS who’d think they’d hit pay dirt if they got the opportunity to become trainee accountants …

    • Rory Mishika says:

      That’s a very myopic opinion Angela. I’m sure you’ll accept that for Vodacom to offer Makate a R47M settlement, they are admitting that they owed him a share of the revenue for PCM all along. If you accept that, then you need to ask yourself “Is R47M a fair settlement on an innovation that Vodacom made billions from?”

      The Vodacom CEO decided that R47M was adequate compensation to Makate, but he wasn’t clear on the basis for that figure. After treating the CC ruling with contempt in 2016, Vodacom could pay VERY dearly for their foolishness very soon, if their planned appeal to the CC gets turned down. They have been given some very bad legal advice to fight this case for so long, and they have probably paid many millions, trying to defend the indefensible, not to mention the potential damage to their reputation (and that of their parent company Vodafone) around the world, when this case starts getting reported in the international media. The negative backlash could be horrendous.

  • David Amato says:

    Seems like the only winners so far are the lawyers. I am pretty sure the lawyers are encouraging pushing for a bigger payout so they can get a cut of it.

  • Bob Dubery says:

    I think the key point here is that Makate is claiming that the idea originated with him, but he doesn’t seem to be have much proof of that.

  • Rob Glenister says:

    Eish – such venom.
    The whole thing sounds sloppy to me and maybe Makate should have settled when he had the chance. But him against Knott-Craig = Knot-A-Winner for either ego.

  • thabiso.maredi says:

    In honesty this guy Mr Makate should not be compensated for plagiarism.

  • Grant S says:

    This is a brilliantly argued comment. Just a shame that his invention had already been invented AND patented. Leak or no leak, it was done already, and as such not an invention.

    Right, I’m off to invent Corn Flakes. Just wait until Kelloggs get my lawyers letter.

  • enele sesinyi says:

    in industry and business, a patent is not everything. in fact at most innovative companies IP revolves around closely held knowhow (trade secrets) even with the dangers (unauthorised disclosure). SO that someone does not have a patent to his name, does not nullify his claim to have ‘invented’.

  • Eddy Van Diermen says:

    Intellectual Property Law tends to “turn on a Dime” Q.E. D. !!!

  • Rae Earl says:

    I had a Vodacom contract some 28 years ago but switched to MTN after numerous service issues with Vodakom. Best move I could have made as MTN really deliver outstanding service. Their Call Me story is a lot more believable than Vodacom’ s particularly taking into account the time lines.

  • Peter Oosthuizen says:

    That Makate should receive compensation makes sense. R47 Million should be adequate. How any court could award billions is beyond reasonable compensation. I guess it’s probably because we are so used to billions being misapplied in this country. As nelson Bunker Hunt is reputed to have said ” A billion here, a billion there, sooner or later you’re talking about real money”.

  • Simon Fishley says:

    I wonder if Vodacom’s reluctance to point at the MTN product arriving before PCM has anything to do with the fact that MTN have the patent for the concept, and by using MTN to justify them not paying Makate, they would be exposing themselves to a claim from MTN for patent infringement, which might mean they would have to pay a larger percentage of their earnings over to MTN?

  • kubukelilwazi says:

    Why if vodacom had a defence to Makate’s claim, as laid out in your piece, all along is it only emerging now? If it was placed before court and did not carry the day after thorough litigation which included appeals, then do not come here now in order to muddy public opinion with a defence that was not found plausible.
    Kindly assist by dispelling my notion.

    • R S says:

      It wasn’t placed before the court because if Vodacom admitted to stealing MTN’s idea they’d be in even bigger trouble.

    • Greg Mahlknecht says:

      The facts in the article have been known for years and years, nothing new here… I think the problem comes in that Vodacoms lawyers and execs would have to admit to perjury to introduce them in to the case now. They probably weighed up the options and chose the wrong one.. which was sticking to their original, now known to be false, story.

  • Nnete 2 says:

    Ari Kahn implementing CallMe in one day? Really? Has Ari Kahn ever revealed how many ideas MTN stole from Vodacom?
    I would not be suprised if this was another concept pilfered from Vodacom. All is not quite what it seems.

  • James Webster says:

    How you can so verbosely defend Makate’s provably untrue assertion when there is a concrete, government sanctioned record of someone else being granted the patent for the concept is mind-boggling. It seems that South African society is weighed down with individuals who will defend a person’s patently false claims purely on the basis of some shared identification with that person rather than the facts. It is true that Knott-Craig is an arrogant, self-aggrandising, mendacious and delusional man, but it appears from the hard evidence, that so is Makate. We see daily proof that most South Africans will lie, cheat and embezzle without any compunction so it’s not hard to believe that both Knott-Crag and Makate have done so as well.

    • Rory Mishika says:

      James, please do yourself a favour by doing some proper research on the facts of this case, which are all available in the public domain, despite the mis-information that Vodacom push out through the media, painting Makate as an undeserving opportunist. Then use your common sense to weigh up how credible Ari Kahn’s latest assertion that someone at Spoor & Fisher ‘leaked’ his idea to Makate, who in turn, then ‘pitched’ it to Vodacom, all within a 5 day period. It’s a totally preposterous and unbelievable allegation, without any proof. This is just another example where Vodacom are serrupiciously using their clout in the media to ‘control the narrative’, while Makate had no other weapon than the truth, to make his case. I salute him for his steadfastness in seeking closure in this case in a dignified way. For a ‘delusional man’ would you agree that he’s doing remarkably well against Vodacom in the courts, against all the odds?

    • Siphelo dakada says:

      It won’t be the first others protecting an invention for identity’s sake, it happened with a wrong heart transplant invention too.

    • A K says:

      Perfectly posted @James.

      The Con Court has made a mockery of Patent Law and has eroded the very Constitution it was formed to uphold by trashing the founding principles governing knowledge and service creation.

      “The law fraternity will suffer the consequences and agony of this ruling for decades to come.” — Malebakeng Forere, Assoc Law Professor, WITS

  • Philip Machanick says:

    Why does MTN (or Kahn for that matter, now that the courts seem to have manufactured a precedent whereby an employee has rights to an idea) sue Vodacom and Makate for the proceeds of violating the MTN patent?

    • R S says:

      I suspect if Makate wins he will be sued. The situation between MTN and Vodacom could be viewed as a gentlemen’s agreement, but now that money is looking to change hands, MTN might decide to follow up on their idea being stolen.

  • tumelomatia says:

    We see the backlash from media & opinion writers trying to defame Makate. He’s the 1st truly self-made african billionaire & it has you peeved. The courts have ventilated everything, yet media is playing kangaroo court. You’re exposing yourselves. Makate is gonna be enjoying his money without ya’ll permission.

  • Graham Horne says:

    I never saw the point of please call me and never used it. Our family would always “send us a missed call” (horrible way to say it) when they wanted you to call them back or when they would be ready to be picked up at school etc. How can anyone think that the PCM suggestion is worth so much? It’s as if he donated his entire life and every brain cell to the idea.

    • Rory Mishika says:

      Graham, you would need airtime to ‘send a missed call’, hence the brilliance of Nkosana Makate’s PCM innovation, which didn’t require the sender to have airtime. Additional revenues (in the billions) were generated by Vodacom, by including an advertisement in the text that the PCM recipient received.

  • Graham Horne says:

    I never saw the point of please call me and never used it. Our family would always “send us a missed call” (horrible way to say it) when they wanted you to call them back or when they would be ready to be picked up at school etc. How can anyone think that the PCM suggestion is worth so much? It’s as if he donated his entire life and every brain cell to the idea.

  • Con Tester says:

    “Rory Mishika” is very vocal in defence of Makate, having posted 8 of 44 comments here. I myself don’t much care for Vodakrom’s corporate ethics, but maybe Rory’s got a personal stake in whatever award Makate stands to gain. ❓

    It’s curious that you won’t find him on Google, according to which this right here is his first Internet appearance anywhere, ever. And how likely is that?!

    • Rory Mishika says:

      Con, I’ve followed this case in the media for many years, which I have found to be very interesting and intriguing, and nothing more. It has all the ingredients of becoming a great story of our time, with many twists and turns, mixed in the cauldron of racial and cultural prejudices within South Africa.

      PCM was a ground-breaking innovation of it’s time, beloved by millions of South Africans over the years, but which is never acknowledged or written about to any great extent. In many ways, Makate’s PCM innovation influenced people’s lives then as much as social media has today. He has behaved nobly through this lengthy saga, where his integrity and character have been besmirched on so many occasions by Vodacom fanboys, who might have a vested interest in appeasing their paymasters for some media advertising revenues. No harm in trying to bring balance and cool reasoning to this argument, without the intention of offending anyone. It’s shaping up to be a gripping finale at the Constitutional Court in the next few weeks, assuming that they will grant Vodacom leave to appeal to them, on the recent damaging Supreme Court judgement against them.

      • Con Tester says:

        Nice deflection from the points raised. 👍🏾

        • Rory Mishika says:

          And the point is Con?

          • Con Tester says:

            The point? Twofold. Your prurient obsession with this case and your lack of any discernible Internet footprint, besides the one here. The slippery “defence” you presented earlier (20 February 2024 at 20:06) is not believable, and the total avoidance of the latter is quite revealing.

            Be that as it may, please feel free to continue this conversation by yourself, with yourself because it’s reached the end of its shelf life and I’m bowing out of it.

          • Rory Mishika says:

            I tried finding ‘Con Tester’ on Google Con, and you know what…the results were all products for testing electrical currents. Go figure.

            For what it’s worth, my motivation was to make a meaningful contribution to the debate, by relying on factual information available to all in the public domain, and to give some ‘balance’ to Toby Shapshak’s clearly pro-Vodacom puff-piece (here and on other media platforms.) I’m sorry if you can’t appreciate robust debate and an alternative perspective. I don’t think it’s fair that folks can come onto any platform and insinuate that Makate’s a thief who opportunistically stole an ‘idea’ from Ari Khan and immediately pitched it to Vodacom, who implemented it shortly afterwards. Maybe you should check out A.K’s comments who appears to be very knowledgeable about telecoms patent law. Ari Khan perhaps…?

            I respect Daily Maverick as a credible news source and Toby Shapshak as someone who has considerable influence in the IT sphere. His obvious pro-Vodacom publications in the media (X, DM, Stuff and radio etc.) are very suspicious. I think he has a ‘prurient obsession’ with getting the ‘Nkosana Makate ‘lifted’ Ari Khan’s idea’ narrative out there, which comes across as the last kicks of a dying horse. Check it out on Google if you don’t believe me…

      • A K says:

        “PCM was a ground-breaking innovation of it’s time.”

        Yes it was. Conceived Created Patented and Publicly Launched seven weeks before Vodacom by Kahn@MTN.

        AKC may have severely tarnished his legacy on the Stand however one thing he did get right was his Bio Title:

        Second is Nothing.

    • William Stucke says:

      It’s now 22 comments out of 89. For someone who doesn’t appear to exist, this is all the more reason to wonder what his motives are, and more to the point, who he really is.

      • Rory Mishika says:

        Thanks for the running total on my posts William. While you are doing the exercise, can you give us some stats on the names of the other people posting on this topic and, more interestingly, how many of them are pro-Vodacom V pro-Makate? Much appreciated.

  • Nnete 2 says:

    MTN seems to have pre-empted a possible claim by Vodacom by advancing Ari Khan as the “inventor” of Please Call Me?

  • Nnete 2 says:

    Ari Khan implemented CallMe product at MTN within two days! Really? That is not how it works. Has Ari Kahn confessed to the many ideas MTN pilfered from Vodacom?

  • R S says:

    Rory, the simple reality is that Khan was first to patent the idea. Even if Makate had come out his mother’s womb knowing he would develop the PCM, Khan was the first to patent it. Makate is opening himself and Vodacom up for legal action should money change hands in this mess.

  • R S says:

    Rory, the simple reality is that Khan was first to patent the idea. Even if Makate had come out his mother’s womb knowing he would develop the PCM, Khan was the first to patent it. Makate is opening himself and Vodacom up for legal action should money change hands in this mess.

  • kuli china says:

    Should’ve closed with a “sponsored by Vodacom”. We never hesitate to through the constitution and constitutional court judgements as sacred. But here we are questioning the outcome of a Constitutional court. The issue is not whether he originated the idea or not but that Vodacom Manager, specifically one Phillip Plessey(or something similar) committed that Makate will get a share of profits but then Chief Pretender Officer AKC went and claimed the idea for.himself.

  • A K says:

    Missing the critical patent point by a mile. You cannot invent an “idea” less so one that was technically bankrupt which is all Makate proposed. Ideas are a dime a dozen and Buzz had absolutely nothing whatsoever todo with Callme.

    The bottomline (again): The Buzz Ring idea he proposed was DOA and the Callme Messaging Service Vodacom implemented was already claimed and launched by Kahn@MTN.

  • Amadeus Figaro says:

    Toby makes the mistake of linking Makate to the leak.

    It is entirely conceivable and in fact in all probability it is what happened that Makate came up with the Buzz idea on his own.

    The most important thing is that Buzz is not Please Call Me. The idea of sending a “missed call” and sending a message are two fundamentally different things.

    Toby in denying Makate his Buzz idea skates on thin racial ground. Unfortunately that is the country we live in.

    Given the power dynamics, who was most likely to play golf with lawyers? Makate or Alan Knott Craig? That is assuming that the lawyers are the ones who leaked the information which might not be the case.

    It was not Makate who drew the straight line from Buzz to Please Call Me but it was Knott-Craig.

    So yes at Vodacom Knott-Craig “invented” PCM not Makate since he was the one who made the decision not to go with Makate’s idea but to steal MTN’s invention. Yes, I said it.

    Makate’s action of suggesting something to prompt a call from another user was used to steal MTN’s idea and invention.

    Did Makate’s race play a part in his usefulness as a defence to MTN? Who knows? It’s a strange country we live in.

    So the long and short Vodacom is in the pickle because of Geissler and Alan Knott Craig.

    Alan Knott Craig does not get the lampooning and vilification he deserves.

    • Rory Mishika says:

      Amadeus, the Ari Khan ‘leak’ allegation is getting into conspiracy-theory territory now, and is without any credibility. Your hypothesis of AKG playing around on the golf course with some Spoor and Fisher lawyers, where they leaked the MTN ‘patent idea’ to him, would be more Inspector Clouseau than Columbo, as the 5 day window for this to happen would be too short. That’s if you actually believe Ari Khan’s /Toby Shapshak’s preposterous allegation in his article (which it would appear that you do.) Think about how many ‘stars that would have to be aligned’ to fit what you are suggesting. I’d agree with you on the subliminal racial undertones of the article, as I think you’re spot on there. AKG’s reputation was irreparably damaged by falsely claiming that the PCM idea was his and not Nkosana Makate’s.

  • A K says:

    Makate and Kahn have only one word in common with two very different prefixes and vastly different outcomes…

    Makate proposed the Buzz Ring which was dead on arrival. AKA Stillborn.

    Geissler promised to reward him if his idea was technically feasible when it proved to be technically bankrupt and impossible to implement at the time.

    Kahn@MTN founded Airborn the Incubation Lab operating under the Johnnic/MTN Strategic Investments Division.

    The Callme Messaging Service was created in Airborn 7 days before Makate proposed his Buzz Ring on the now infamous memo.

    Callme was patented and publicly launched 7 weeks before Vodacom who abandoned Buzz and landed up implementing “Callme” a carbon MTN copy without even bothering to change the MTN name.

    Stillborn and Airborn. Pretty much says it all.

    • Rory Mishika says:

      Ari, according to Toby’s article, is it really your contention that your idea was ‘leaked’ when you briefed Spoor & Fisher, which was then plagerised by Vodacom/Nkosana Makate 5 days later, and implemented 6 weeks after MTN launched their Call Me innovation? Can you substantiate that allegation?

      During the court case in August 2013 Alan Knott-Craig admitted under oath that Makate had invented the PCM innovation/idea. In that same testimony, he admitted that he was not aware of MTN ever threatening to sue Vodacom for allegedly stealing Please Call Me, ‘as Geissler had led Makate to believe in 2001’. In that same court case, your/MTN CallMe patent was compared with what Vodacom implemented, based on Makate’s brilliant (and very profitable) PCM innovation, and they were found to be technically very different. Can you explain why the court came to that conclusion? Why didn’t Vodacom call you as a crucial witness to defend them, and to explain to the court how they had plagerised/stolen your innovation and accredited Makete with it. This must rankle you every time you hear about PCM, being someone that Toby Shapshak describes in his article, as “a legendary figure in the mobile industry in South Africa, who worked on ‘three world firsts’.

      Can you enlighten us why you believe that MTN never sued Vodacom back in 2000, (or anytime after) for stealing their ‘patented’ innovation, when Vodacom/Vodafone made billions from it over 20 years, around the world? Interesting.

  • Youone Are says:

    After the Supreme Court of Appeal’s decision, media reports have scrutinized the fairness of awarding Mr. Makate R29-R55 billion, noting the concept might have been patented by MTN.
    This seems part of Vodacom’s strategy to sway public and judicial opinion. Despite this, Vodacom’s obligation to compensate Mr. Makate isn’t affected by whether his idea was similar to an existing patent or MTN’s involvement. The court’s confirmation of Vodacom’s agreement to share profits with Mr. Makate stands firm.

    Analogously, if someone introduces a beneficial foreign-patented product to South African companies and reaches a profit-sharing agreement, they’re entitled to compensation, irrespective of the product’s ownership.

    Thus, Vodacom’s commitment to Mr. Makate, based on revenue generated, remains in any event unaffected by the concept’s origin, as had MTN been the service’s developer, Vodacom would’ve had to negotiate a license, potentially costing them 25% of profits. Mr. Makate’s inclusion and a 15% profit share mean Vodacom would still profit substantially from their R200 billion revenue.

    Vodacom’s litigation tactics, now aimed at eliciting public sympathy, cannot overshadow Mr. Makate’s right to compensation. While R29 billion is significant, it’s modest in the realm of intellectual property, underscoring Mr. Makate’s deserved recognition for his resilience and innovation.

    • A K says:

      Flawed logic on so many levels…

      He did not “introduce” the Callme Messaging system to Vodacom he proposed an entirely different concept called Buzz Ring which was DOA.

      The promise to “reward” (not gross revenue share let alone profit share) was contingent on his proposal being technically feasible when it turned out to be technically bankrupt.

      Right then right there right out the Buzz gate any contract to compensate him for his idea was extinguished.

      Vodacom abandoned his Buzz and what they landed up implementing was already patented and launched by Kahn@MTN seven weeks prior.

      MTN Callme had sent over 100 million callme text messages over the public networks in broad daylight before Vodacom had sent its first 1.

      Vodacom came to Callme not because of Makate they came to Callme because they copied their arch rival across the road who had just launched an SMS rocketship that landed on the moon.

      • Youone Are says:

        Dear AK,

        I presume you are Arie Khan. It seems there might be a misunderstanding regarding the core issue at hand. The debate over whether Makate’s proposal was technically identical to that of yours or MTN’s is secondary. The primary concern is Makate’s contribution towards identifying a novel revenue avenue that reportedly generated R200 billion for Vodacom, a financial gain unlikely without his input.

        In the business world, it is not uncommon for companies to reward sales personnel with up to 25% commission on sales that would not have been realized without their efforts and keeping in mind that Makate’s job description was ‘accountant’ not ‘business developer’. In this context, the court’s decision to award Makate a 5-7% commission appears to be more than reasonable.

        From MTN’s perspective, pursuing legal action against Vodacom for equitable licensing terms, potentially up to 25%, would have been a justified course of action, assuming they had maintained their patent rights. However, the abandonment of the patent, along with losses now due to prescription, unfortunately, positioned MTN at a disadvantage.

        In light of these developments, it might be advisable for the concerned parties to evaluate the advisability of their legal representation in relation to the financial outcomes experienced.

        Best regards

    • A K says:

      Apples and Oranges.

      We are not talking about a “finders fee” for some foreign owned asset here.

      We are talking about the Sovereignty of a Nationally Patented and Protected Technology that awards Inalienable IP Rights to the Inventor (Kahn@MTN)

      So again …

      No.

  • Lyle Pillay says:

    They should just hand over Vodacom to him.

  • Bamdile Sithole says:

    Hello

  • Rory Mishika says:

    Please note that 18 comment postings were removed from this article before the Roggers Mamaila comment below, which amounts to censorship by Daily Maverick personnel. I have contacted them 3 times by e-mail for an explanation, and can proved them with a copy of the removed comments, but they have chosen not to respond. Not good for a publication that professes to ‘Defend Truth’.

Please peer review 3 community comments before your comment can be posted

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