During the more than year-long case, Vodacom’s legal team argued that the issue was never about intellectual property. Instead, it hinged on whether Geissler was authorised to enter into a contract on behalf of the company.

Likonelo Magagula, a director and intellectual property rights lawyer at Norton Rose Fulbright, said given that Makate was a full-time employee when he came up with the concept, in terms of the Copyright Act, ownership of copyright in a work product which an employee created during the course and scope of employment vested with the employer. “There is no intellectual property protection afforded in ideas per se – that is, there is no proprietorship or ownership in an idea if the idea is not reduced to material form.”

She added that the case would have been decided in favour of Makate if he was engaged as an independent contractor.

However, even in that case, the issue would still be whether Makate thought of the idea or whether he came up with the ultimate product or at least wrote down how the product worked, as required by the Copyright Act, she explained.

– By Ayanda Mdluli