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Why we mourn when many celebrate Nkosana Makate’s victory

The legal victory of Nkosana Makate at the Constitutional Court against telecoms giant Vodacom, in the Please Call Me case, has been widely celebrated as reflecting the strength of South Africa’s justice system. By Sibonelo Radebe, Founder of ProBonoMatters

But we at ProBonoMatters continue to mourn under the shadow of the Please-Call-Me jubilation. This is to dilute intoxication in a small victory.

Yes it was a classic David versus Goliath case that has galvanised popular and populist support rhythms. A young, black and bright man in the employ of Vodacom, invents the Please-Call-Me concept. The concept, allowing a moneyless mobile phone subscriber to send a message to be called back by another person with airtime, has generated billions of rands for Vodacom.

Instead of giving Makate due consideration, Vodacom snubs him. And so Makate, still in his early 20’s, goes to court, to claim billions of rands due to him from Vodacom, a subsidiary of London based global telecom giant Vodafone.

As the case moved from the High Court to the Supreme Court of Appeals with Makate losing, the young man was made to appear as an imposter, thus perpetrating the historical exclusion of black people in the imperialistic corporate complex. Many black people expressed hurt.

Makate persisted to the Constitutional Court which ruled in his favour, ordering Vodacom to work out a settlement.

The Constitutional Court judgement, delivered by Justice Chris Jafta, was scathing to Vodacom’s conduct, describing it as “dishonourable”.

 “The stance taken by Vodacom in this litigation is unfortunate,” said Jafta. “It is not consistent with what was expected of a company that heaped praises on the applicant for his brilliant idea…

“The service had become so popular and profitable that revenue in huge sums of money was generated, for Vodacom to smile all the way to the bank.  Yet it did not compensate the applicant even with a penny for his idea.  No smile was brought to his face for his innovation.”

Victory for the Small Man?

 Coming two weeks after the highest court in the land delivered the widely celebrated President Jacob Zuma/Nkandla judgement, the outcome of the Makate case is generally seen as a victory for the small man against abuse of power.

A closer, unemotional, look will suggest otherwise. The Makate case is one of the best reflectors of a major weakness in South Africa’s justice system. South Africa’s justice system, mainly the ability to litigate, is largely inaccessible to the common man.

The problem is well captured by prominent businesswoman, a legal mind and social activist; Brenda Madumise-Pajibo. Looking at the financial aspects of maintaining the Makate case to reach the Constitutional Court, Madumise-Pajibo said “Justice in this country is expensive and unaffordable to many.”

For us at ProBonoMatters, the Makate case underlines the need for a robust pro-bono-matters ecosystem to serve the common man.

Steep Legal Fees a Justice Barrier

Under normal circumstances, Makate would have had to fork out millions of rands in legal fees to secure this victor. Without the strange ‘angel type’ help, he would not have had the ability and energy to stay the course that delivered this victory.

Consider the Oscar Pistorius legal fees. The once celebrated Paralympian who was accused and found guilty of murdering Reeva Steenkamp in cold blood is said to have gathered a legal bill of about R30m. Pistorius’ case dates back to 2013.

Makate has been pushing his legal course against Vodacom for much longer than Pistorius. Following the Vodacom Please Call Me robbery that started in 2000 Makate served summons against Vodacom in 2008. As such his legal fees are eight years long. It is reasonable to assume that Makate’s fees would also be in the region of R30m if not more. It is also reasonable to assume that he would not have afforded the legal fees without the help he got.

A Strange Legal Business Animal

Makate was rescued by a strange and yet pivotal legal business animal. Media reports have said that Makate was backed by a group of businessman organised as Sterling Rand. This entity, Sterling Rand, is designed to comb the litigation world, identify strong cases with not so well to do plaintiffs and pick the legal fees. The entity is therefore positioned to claim a share in the financial settlement, should their case win.

This is not an entirely new way of doing things in the legal world. Many lawyers do litigate on behalf of clients without taking a fee by using the contingency principle. This is popular, also showing space for abuse, in the community of lawyers who handle Road Accident Fund (RAF) claims on behalf of clients.

In addition to the fact that this contingency model can be abused by unscrupulous operators, it turns the legal system into a lottery of sort, where the right to litigate is at the mercy of angel investors.

This is to say:

Yes the Makate victory is worth celebrating as a symbol of victory for the small man and even a sign of good over evil. But if many other Makate’s out there do not have the chance in hell to have justice, the Please Call Me victory only serves to expose the pain of exclusion.

Need for a Robust Pro-Bono-Matters Ecosystem

One way to address this pain is to harness a robust pro-bono-matters ecosystem that will serve the common man. Such a system of pro-bono-matters can, for the purpose of conceptualisation, cover the office of the Public Protector, Legal Aid South Africa and non-state initiatives like ProBonoMatters, Legal Resource Centre, ProBono.org, and the various university attached law clinics.

Even the Constitutional Court judges recognise the need for a robust pro bono ecosystem. This understanding was elegantly captured by the Chief Justice Mogoeng Mogoeng when handing down the Nkandla judgement. The Chief Justice noted that: “The tentacles of poverty run far, wide and deep in our nation.  Litigation is prohibitively expensive and therefore not an easily exercisable constitutional option for an average citizen.”

For this reason, said Mogoeng, the fathers and mothers of our Constitution conceived of a way to give even to the poor and marginalised a voice, and teeth that would bite corruption and abuse excruciatingly.

“The Public Protector is thus one of the most invaluable constitutional gifts to our nation in the fight against corruption, unlawful enrichment, prejudice and impropriety in State affairs and for the betterment of good governance.”

In light of that view, we have established an online platform that allows ordinary South Africans, the many Makate’s out there who suffer the pain of prejudice and inability to mount a legal protest. This platform is called ProBonoMatters.

Sibonelo Radebe is the founder of ProBonoMatters, an open online network of legal minds that allows the common man to access legal services for free.

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