Investor Errol Elsdon’s urgent court application to have 40% of Nkosana Makate’s multimillion-rand payout from Vodacom frozen, pending a legal dispute over entitlement to the money, has been dismissed.
Acting judge Don Mahon of the South Gauteng High Court dismissed the application on Monday after the case was heard last Thursday. This means Makate can access the funds.
Makate, the idea man of the “Please Call Me” idea for Vodacom, was taken to court in November by foreign company Black Rock Mining, claiming entitlement to 40% of his payout.
The former director of Black Rock, Elsdon wanted a court order compelling Makate’s attorneys, Stemela & Lubbe, to ring-fence 40% of the payout pending the outcome of the dispute over whether Black Rock Mining is entitled to a substantial share of the money.
The company agreed to pay for all legal costs for Makate in 2011 in his 17-year battle with Vodacom but the relationship soured in 2015.
Black Rock Mining was deregistered and cashflow for legal funding was affected. Makate argued the company last paid his legal fees in 2014 and failed on its contractual obligation.
Mahon dismissed the application on the grounds it was not urgent, and Black Rock Mining, represented by advocate Nazeer Cassim, could not give the court substantial reasons as to why they think Makate would squander the funds and urgently needed to protect the funds.
“It is appropriate to record that the question of urgency is, in this matter, inextricably intertwined with the merits. The applicant’s claim to urgency rests squarely on its allegation that the settlement proceeds are at risk of dissipation. Conversely, the respondents’ position is that, absent such a risk, the matter is not urgent and the applicant cannot satisfy the requisites for interim relief,” the judgement read.
Mahon found in Makate’s favour on that score.
“The evidence of an intention to dissipate, or a reasonable apprehension of dissipation, therefore informs not only whether the matter ought to be entertained as one of urgency, but also whether the applicant has established a well-grounded apprehension of irreparable harm and the absence of an adequate alternative remedy.
“Once it is found, as I have concluded, that the applicant has not established any basis for apprehending dissipation, the foundation for both urgency and interim relief falls away. Because these requirements are essential to the claim for interim relief, this finding is dispositive of the application.”
Mahon dismissed the application with costs pinned on Black Rock Mining.
“The application is dismissed. The applicant is ordered to pay the costs of the first and second respondents, including the costs of senior and junior counsel, where so employed, on scale C.”
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.