Vodafone has accused ‘Please Call Me’ (PCM) inventor Nkosana Makate of ‘misdiagnosing’ its intentions in its application to be admitted as a friend of the court in his legal battle with Vodacom.

The majority shareholder in Vodacom has filed papers in the Constitutional Court replying to Makate's opposition to its admission as amicus curiae, saying Makate is trying to ‘mute’ it and deny the court the benefit of its input.

As previously reported, Makate last month opposed London-based Vodafone's application to intervene in his two-decade legal battle with Vodacom, accusing it of trying to boost the SA company's case and exaggerating the impact of his claim.

The Sunday Times reports that Nickola Vidovich, Vodafone’s chief legal director, in replying papers filed in the Constitutional Court last week, said Makate had ‘erroneously categorised’ their intentions.

‘It is for that reason that Mr Makate has incorrectly approached the matter on the basis that Vodafone's intervention is to be considered on the same footing as that of an application to intervene in the principal proceedings. Vodafone's proposed role is more limited.’

Vidovich said the compay's intervention was not as a primary litigant and participant in the underlying contractual dispute between Makate and Vodacom.

‘This is not what Vodafone applies for at all and it is not what Vodafone seeks to do. Vodafone has never been a contractual counterpart of Mr Makate or a party directly opposing Mr Makate's pursuit of his claim(s) before this court or any other.’

Vidovich said Makate seemed more concerned about Vodafone obtaining a voice in the proceedings ‘than the substance of what Vodafone intents to contribute’.

‘Mr Makate evidently wants to mute Vodafone so that this court does not have the benefit of Vodafone's input and submissions. I submit that this is because Vodafone's submissions are correct and largely unanswerable by Mr Makate,’ argued Vidovich.

The Sunday Times notes that he said they wanted to help the court by placing relevant facts before it and that this was not for the purposes of participating as a full litigant.

Vodafone said the proceedings before the apex court were the only opportunity available for it to intervene and contribute ‘to a just and proper outcome of the proceedings’.

Vodacom went to the Constitutional Court in February in a bid to quash a ruling by the SCA that it should make a new compensation offer to Makate for his PCM idea.

The SCA set aside a R47m offer that Vodacom CEO Shameel Joosub made to Makate five years ago, which he rejected.

Instead it ordered Vodacom to pay Makate between 5% and 7.5% of the total revenue generated by the PCM service over an 18-year period from March 2001, plus interest.

In its application, Vodafone had stated that it intended to ‘enrich the debate and subsequently contribute towards the effective, and indeed properly contextualised, disposal of the appeal’.

The Sunday Times reports that it had also argued that should the court allow the SCA order to stand, Vodacom would be forced to retrench numerous employees in an attempt to comply.

Makate had in his reply papers last month argued that Vodafone was using its friend of the court application to supplement Vodacom’s case, which he believed was defective.

He argued that Vodacom and Vodafone were essentially one entity with the same interests.

He also argued that Vodafone was introducing new evidence and said this was inadmissible because it ‘goes beyond the kind of evidence an amicus is permitted to introduce before the court’.

Full Sunday Times report