Please Call Me, inventor Nkosana Kenneth Makate is seeking a nolle prosequi certificate from the National Prosecuting Authority to possibly privately prosecute his former backers.
Makate’s legal representative, Wilna Lubbe of Stemela & Lubbe, said the move would depend on the NPA’s final decision.
“Depending on the final decision by the NPA, Mr Makate will consider instituting private prosecution,” Lubbe said.
The dispute forms part of a long-running legal fight between Makate and Errol Elsdon, one of the people involved in early funding for Makate’s case against Vodacom.
Former backer claims 40%
Elsdon argues that his British Virgin Islands company, Black Rock Mining, holds the original litigation funding agreement between Makate and his early backers.
He says Black Rock is entitled to 40% of the settlement Vodacom paid Makate for the idea that led to Please Call Me.
The settlement amount has not been disclosed.
Vodacom’s market announcements pointed to a once-off earnings impact of between R353m and R748m.
Industry sources cited in the provided report placed the settlement near the higher end of that range, which would put Elsdon’s disputed claim at more than R200m.
Makate challenges funding agreement
Makate has launched an application in the Pretoria High Court to have the funding agreement declared void.
He argues that Elsdon and his associates misrepresented Black Rock’s ability to fund the litigation.
According to Makate, they claimed Black Rock had the financial means, legal standing and administrative capacity to pay legal costs, deposit funds when needed and indemnify him against adverse cost orders.
Makate says those claims were false.
He alleges Black Rock was not in the litigation funding business, had no assets, did not trade, failed to file annual returns in the British Virgin Islands and did not keep proper accounts.
Fraud and forgery allegations denied
Makate also accuses Elsdon and associates of fraud and forgery linked to later funding arrangements.
He alleges £150 000 raised for the litigation was diverted to accounts in Cyprus instead of being paid to his attorneys.
Elsdon denies any criminal conduct.
His legal representative, Sinenhlanhla Mnguni, said Black Rock was not in a position to give a detailed response but denied any suggestion of criminal wrongdoing.
Elsdon has also denied fraud, forgery and dishonesty.
Lubbe rejected Elsdon’s counter-allegations involving money laundering, saying they were “devoid of any truth”.