Judgment reserved as Black Rock Mining fights for a slice of Makate's Vodacom payout

Eighteen years of litigation and yet the “Please Call Me” saga has not ended, with a new fight by litigation funders who want a 40% share of Nkosana Kenneth Makate’s Vodacom payout.

While the fight with network provider Vodacom for fair compensation for his Please Call Me (PCM) invention came to an end last month when a secret settlement was reached - now said to be in the region of R700 million compensation, Black Rock Mining wants what it says is its share - 40% - of the money.

Makate has subsequently agreed to retain 40% of the money pending the outcome of legal proceedings by Black Rock in the Gauteng High Court, Johannesburg, to ensure that this money is kept in a trust, pending the outcome of arbitration proceedings, set to be heard at a later date.

Black Rock Mining maintains that it is the litigation funder that ensured Makate would triumph over mobile giant Vodacom.

In a statement issued this week, it said it is disappointed that its dispute could not have been settled amicably. It, however, believes legal proceedings will uphold Black Rock Mining’s right to 40% of Makate’s winnings.

Black Rock Mining maintains that it and Makate entered into a written funding agreement in November 2011 that paved the way for Black Rock to fund Makate’s legal battle against Vodacom, in return for 40% of the proceeds from any victory or settlement.

Black Rock Mining says as part of the critical support it provided, it reformulated Makate’s claim against Vodacom, shifting the litigation onto stronger legal grounds, centred on breach of agreement.

According to the funder, it tracked down and travelled to the Isle of Wight to persuade Makate’s former Vodacom manager – who had relocated to the UK – to testify on his behalf, which was, it claims, the linchpin of Makate’s eventual success.

It further maintains that it had appointed Stemela and Lubbe as Makate’s attorney, along with new senior counsel, and that it provided millions of rand in legal funding.

“Previous arbitration resulted in a binding finding in March 2020 that Black Rock was the litigation funder who had an agreement with Makate,” the funder said.

But Makate, in opposing the application, says Black Rock is not entitled to a cut of his payout, claiming that the funding agreement was long cancelled.

His legal team accused Black Rock and its previous directors of fraud - something the funders vehemently denied.

It was argued on behalf of Makate that the applicant, Black Rock, purports to present a simple case.

After learning of Makate's settlement with Vodacom, it promptly sought undertakings from Makate to “freeze” 40% of the funds received from Vodacom pending litigation, which were refused.

Now it seeks “ordinary” interim interdictory relief to preserve the funds in a trust account while enforcing its alleged contractual rights, counsel for Makate, Advocate Cedric Puckrin, argued on Thursday.

The dispute between Makate and Errol Elsdon of Black Rock, as to whether Black Rock or any of Elsdon's shelf companies (Black Rock and Raining Men Raining Men) would receive any money pursuant to the funding agreement with Makate, has been raging for more than a decade, Puckrin said.

“They have been under no illusions that Makate will not pay anything. For a decade now, they have done nothing to resolve this. Now Black Rock seeks to enforce the provisions of the purported funding agreement...” Puckrin said.

He told the court that Makate stands to suffer severe losses if the funds remain in a trust account pending the finalisation of litigation that is likely to continue for many years.

These losses include reduced interest income and the loss of income he could have earned through investment, Puckrin said.

Judgment was reserved.

zelda.venter@inl.co.za