Please Call Me inventor Nkosana Makate is back in court, this time challenging Black Rock Mining's alleged funding agreement.
Image: File
The Vodacom “Please Call Me” (PCM) saga has not ended, with a new fight by the inventor, Nkosana Kenneth Makate against his former litigation funders whom he says, “never existed, except on paper”.
The alleged litigation funders want a 40% share of Makate’s Vodacom confidential payout, but Makate is fighting this. Black Rock Mining, a British Virgin Islands company, maintained it and associated companies funded him in his legal fight against Vodacom over the years.
Makate will ask the Gauteng High Court, Pretoria to declare that the funding agreement is invalid or that it was properly canceled or terminated.
He stated in court papers that Black Rock has failed to be registered as an “external company” as envisaged by the Companies Act and that it was finally deregistered on April 30, 2014 and remained deregistered until December 2020, when it was restored to the BVI company register following a court order granted on an ex parte application and without notice to him (Makate).
The latest litigation is also aimed against businessman Errol Elson, whom Makate says is the controlling mind of Black Rock.
During or about February 2021, Black Rock instituted an application against Makate to have itself declared as the nominated company in terms of the funding agreement.
Makate explained in court papers that in November 2011, he entered into a written funding agreement with the late Christiaan Schoeman, who was to nominate a company (later named as Black Rock) to fund his legal costs and expenses to pursue the PCM litigation.
According to the agreement, upon conclusion of the matter, whatever award is made and recovered by Makate from Vodacom shall be paid to Stemela & Lubbe Inc (Trust Account), who shall be instructed to divide such recovery in such a manner that Makate will receive 60% thereof and the Company 40%.
But Makate said this was a misrepresentation as Black Rock never had the financial means, assets or legal standing to be his funder and this was never disclosed to him.
He said this misrepresentation amounted to fraud, as the defendants from the start knew Black Rock would not be able to honour the funding agreement.
Makate stated that in March 2021, he, represented by his former attorney, Stemela & Lubbe Inc., cancelled the impugned funding agreement, including the arbitration clause.
According to him, throughout the duration of the funding agreement, Black Rock has not performed any of its obligations. Consequently, he said, he has no obligation to tender any restitution of performance.
According to his court papers, Makate carried the legal costs associated with the PCM litigation since January 2015.
It is stated in his claim that Black Rock breached its obligations in terms of the funding agreement, as it was factually and legally incompetent to have performed its alleged obligations.
According to his papers, Black Rock failed to deposit sufficient funds for the litigation and failed to indemnify Makate against adverse cost orders granted against him in the course of the PCM litigation.
Thus, he says, Black Rock is not entitled to 40% of his Vodacom settlement.
Black Rock Mining maintains in papers filed earlier as part of the ongoing legal battle, that it is the litigation funder that ensured Makate would triumph over mobile giant Vodacom.
It said it believes legal proceedings will uphold its 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.
Makate, meanwhile, commented that the court must now finally deal with this matter.