A concise contractual agreement with Nkosana Makate would have saved Vodacom costly court proceedings, lost time and an exorbitant payout, say legal experts.
Will this, the final leg of the Copyright Amendment Bill and Performers’ Protection Amendment Bill process, address all the thorny issues? Perhaps. But only if the people who represent us in the legislatures do their homework and really get to grips with each challenging clause of each complex.
A highly contested and expensive case between Nkosana Makate and Vodacom has resulted in bad precedence in the field of company law on the issue of ostensible authority, as experts in this field have argued (see the works of V Madlela and P Lehloenya; and RD Sharrock).
But the case is even worse in the field of intellectual property law, and presumably also distorts employment law on the issue of the fiduciary duties of the employee to the employer.
There is no doubt that the work concerned (the “Please call me” service) is an intellectual creation of Makate. Despite being an intellectual property subject matter, the case has been decided solely as a contractual dispute, turning a blind eye to the underlying ownership of the “Please call me” product. Our courts have warned against deciding intellectual property issues based on other disciplines of the law, yet this caution was ignored in the “Please call me” case.