‘Please Call Me’ inventor Nkosana Makate.
As the argument over who funded Please Call Me inventor’s court case might go to arbitration, an ITWeb investigation reveals that there may never have been a contract between Black Rock Mining and Nkosana Makate in the first place.
Earlier this month, British Virgin Islands-registered Black Rock Mining lost its battle to urgently freeze money Makate won after an almost 20-year battle, pending further court action over whether it is entitled to 40% of the pay-out as it claims.
The company says it has funded the court case to the tune of R5 million in return for a share of Makate’s winnings, which it hoped would be substantially more than its investment.
Black Rock Mining, or associated companies such as Raining Men and Sterling Rand Litigation Fund, have repeatedly said they funded Makate’s fight against Vodacom to be paid for his invention, which was finally settled out of court for an undisclosed amount last month.
While it’s unclear how much Makate has won, various reports put it in hundreds of millions.
The Johannesburg High Court this month ruled that the funds didn’t urgently need to be frozen because there was no danger of it being “dissipated,” and Black Rock couldn’t claim financial harm regarding a matter it hadn’t won yet.
Now, Black Rock wants to push the matter into arbitration, with Stemela Lubbe MD Wilna Lubbe telling ITWeb on behalf of Makate that “any arbitration to be instituted will be opposed”.
This Black Rock Mining is not associated with an Australian mining entity of the same name that is listed on the Sydney Stock Exchange. Black Rock Mining’s shares have dropped 99.45% since December 2003, four years before the contentious Please Call Me case kicked off.
Lubbe says that Makate “will oppose any attempt by Black Rock to claim any share” of the payout. She adds that Black Rock “did not comply with its obligations in terms of the initial funding agreement, which had been cancelled long ago”.
Sydney-listed mining company Black Rock Mining’s shares have declined 99.41% since 2003.
A 2018 judgment casts doubt as to whether there was a funding deal at all, supporting Makate’s cancellation claim.
Judge NB Tuchten in the North Gauteng High Court in Pretoria records seven years ago that Christiaan Schoeman – at that stage apparently representing Raining Men – sent Lubbe an email in December 2014 concerning the deal’s status.
In the email, Schoeman states that “there is no agreement between Makate and Raining Men and they are not entitled to any rights under the Funding Agreement… I am the only person who holds those rights, until I nominate a company in my place.”
Makate then retained a new attorney, Victor Williams of the firm Hahn & Hahn, who sent lawyers representing Schoeman and Raining Men an email cancelling the deal.
“The validity of the cancellation is however now in dispute,” records Judge Tuchten. The judge does, however, note that “at the time it [the cancellation] was purportedly made, it suited Schoeman, Errol Elsdon and [Tracey] Roscher for the funding agreement to be cancelled”.
Elsdon has often represented the funding vehicle in the media, while Roscher was, at one point, one of the people involved with Black Rock.
The ruling further notes that “this is because, to their knowledge, Vodacom was threatening proceedings to render them personally liable for the costs of the action and there seemed but a slender prospect that Makate would win his case”.
In the latest ruling, Judge D Mahon states that Makate and Schoeman entered a contract in November 2011 under which a company “to be nominated” by Schoeman would fund Makate’s legal battle in return for 40% of any settlement he received.
The judgement notes that, in 2013, Schoeman told Makate that the company to be nominated would be Black Rock, which was confirmed in writing in July.
In 2015, there was a legal skirmish over whether the deal had been struck with Schoeman’s company Raining Men or with Black Rock.
Without deciding on whether the contract was valid or not, Advocate MH Mabena determined during arbitration hearings that the deal was with Black Rock.
Schoeman was an advocate who was struck off the roll in 1999 and, at the time he concluded the funding agreement, “was unable to meet the obligations imposed upon the company to be nominated out of his own means,” the 2018 ruling reads.
In the past almost 20 years, there have been multiple court cases over Please Call Me (Photograph: Nicola Mawson.)
Black Rock’s disappearing act
Black Rock itself was deregistered between 2014 and 2021, the December judgement states. “During this period, it took no steps, in its own name, to assert rights under the funding agreement,” writes Judge Mahon.
After Black Rock was reinstated in March 2021, Makate’s attorneys again tried to cancel the funding agreement, this time relying on allegations of fraud, alternatively repudiation.
“Black Rock does not accept the validity of either purported cancellation,” the latest ruling reads.
The ‘sham’ allegations
Schoeman claimed in 2016 that Lubbe and the other investors proposed a scam to cancel Makate’s funding contract. “The whole cancellation is a sham conceived and orchestrated by Lubbe and executed by me,” Schoeman says.
At the time, Lubbe, acting as Schoeman’s lawyer, called his claims a “blatant lie” and said that the financial backers were not fulfilling their funding duties in terms of the agreement, which eventually resulted in the cancellation of the deal.
Complicating the matter is Makate’s argument before Mahon that “Elsdon describes himself in his replying affidavit as having signed the resolution ‘as director’ of Black Rock, notwithstanding his earlier statement in the founding affidavit that he is a former director”.
Mahon records in his judgment that these “inconsistencies in Elsdon’s affidavits are troubling”.
The current director, apparently “Marinos Daniel” according to Black Rock’s BVI resolution, did not provide any evidence to the court, which Mahon said is “unsatisfactory”.
Makate also argues that “there is no evidence under oath that he [Marinos] holds that office”.
Timeline of Black Rock involvement. (Image created using GenAI)
Mahon did record, however, that Makate’s lawyers did not prove that SN Mnguni Attorneys lacked permission to act, so the court accepted that they were authorised, despite some paperwork gaps.
ITWeb’s attempts to contact Black Rock’s current lawyers, SN Mnguni Attorneys, to determine whether the company would appeal were unsuccessful.
We were also unable to secure answers to questions as to who Black Rock is, how it came to lend Makate money regarding the Please Call Me matter, or provide details on Black Rock’s involvement regarding the loan such as when it was made and for how much.
