Vodacom: "Please Call Me" Case Highlights Data Challenges in Damages Claims

The Please Call Me case went through four courts before eventually being settled. (Image made with GenAI) Nkosana Makate cleared the first of three hurdles in 2014 when a judge found that he had invented Please Call Me, then the second in 2016 when the Constitutional Court deemed he had a valid contract with Vodacom. Yet the third – determining just how much he could lay claim to – proved elusive during Makate’s two-decade fight with the mobile giant. For Makate to claim a share of the money he said Vodacom had earned from his invention, he needed to know how much Vodacom made from the service. And that required data that, depending on which version is believed, either doesn’t exist, or was never made available to him. However, before the money talk, Makate first had to have a court rule to establish that he had invented the solution; going up against Vodacom’s first CEO, Alan Knott-Craig, who claimed in court and a 2009 book that he originated Please Call Me. Yet, in a 2014 decision, Judge Phillip Coppin found Makate developed the service, saying he had “difficulty” with Knott-Craig’s evidence, including “his, what I consider, rather equivocal, evidence regarding whether he had described the plaintiff as being greedy and had decided that the plaintiff should get nothing”. (ITWeb unpacked that case in: The Please Call Me millions: Makate’s first case was ‘FUBR’ ) During the same ruling – although ruling that Makate had a valid contract – Coppin said any claim he may have had expired some years ago. Makate successfully overturned that in 2016. With the contract upheld, the question of how much Makate was owed remained. That hinged on data neither side could agree existed. Throughout Makate’s entire two-decade battle, Vodacom argued there was no data because it hadn’t kept any; a position it maintained at the final hearing in the Constitutional Court last year. “Vodacom simply cannot collect objective data to record those calls that would not have been made but for Please Call Me,” Vodacom says in its heads of argument ahead of those hearings. The operator notes: “There is also no way to ‘retain’ this data as Makate suggests – there is simply no way to determine in the mind of a caller the relationship between a PCM sent to them and a ‘corresponding or induced’ call.” In 2011, in a case where Makate sought data ahead of suing Vodacom for payment, Judge Brian Spilg ordered Vodacom to provide all “the records reflecting all Please Call Me product calls since the beginning of 2000 to date”. While this specific discovery process was subsequently dropped, Vodacom had, in fact, determined that records should be kept, with 2016 court documents recording that Vodacom’s then financial director, Johan van der Watt, suggested a plan to track Please Call Me-initiated calls to Vodacom’s then MD, Andrew Mthembu. In this mail, Van der Watt noted “there is potential for increase in revenue [sic]”, but flagged that changing call patterns made it hard to determine whether the service would offset any losses. Mthembu agreed, suggesting information be gathered to understand calling patterns and remove uncertainty over profitability. A timeline of Vodacom vs Makate cases that shows various claims regarding available data. (Graphic created by GenAI) In July 2013, Vodacom decided not to track “revenues because there were many factors that could have made the results unreliable”. Makate’s heads of papers ahead of the first Constitutional Court hearing record that Vodacom “assumed” the concept led to an increase in revenue but “we have not explicitly calculated if this occurred”. Yet, in June 2020, Pretoria High Court Judge Narandran Kollapen ordered the mobile operator to provide data and financial information because this was “pivotal in that process and in the determination of the relief sought”. By Vodacom’s own account, it was losing R25.4 million a day because it could not introduce the planned 15c-per-message charge after the six-month free perio