conditional on the user having a positive balance (funds being collected monthly in advance from the user
ideally by a monthly ACB bank transaction as authorised by the user on enrolment or registration, but also by
cash payment at the PPOL offices), such balance being reflected in the financial information stored on the
PPOL database. The basic financial arrangement then being one of "first pay then use".
[47] By 2002, PPOL had become a lucrative business. At the end of 2002, the plaintiff met and entered into
discussions with two officials of Vodacom, Mr Blaise Somerville and Mr Vernon Hambrock. This encounter led to
the production of the marketing proposal. They met first at the Leopard Creek Golf Course in Mpumalanga.
According to the plaintiff, Somerville and Hambrock were enthusiastic about his product and invited him to
Page 395 of [2009] 1 All SA 381 (T)
present a proposal to Vodacom in Sandton in January 2003. The plaintiff 's interest and purpose in presenting
his proposal to Vodacom is stated in the marketing proposal in the following way:
"We would like you to market the prepaid online product in your Vodashop outlets throughout the country, we believe
that subscribing people to the service will benefit your Vodashop outlets hugely."
The plaintiff saw advantage in cooperation with Vodacom in the possibility it offered to obtain an aggregated
stock of vouchers in electronic form, thereby obviating the need to upload individual vouchers into the PPOL
system manually. The marketing document concludes with a revenue share proposal mutually beneficial to
PPOL and Vodacom. For reasons unknown, nothing in the way of cooperation between Vodacom and PPOL
came to pass from the presentation of the proposal.
[48] This evidence was offered, it seems, not to show that there had been a textual infringement, but in support of
the contention by the plaintiff that Vodacom probably obtained its ideas for the Autocharge system from the
PPOL proposal.
[49] At the time he filed the patent specification, the plaintiff was aware of the existence of the Autocharge service
made available to the public by Cointel (Pty) Ltd. As part of his research into whether his patent had been
anticipated, prior to filing the specification, the plaintiff investigated the workings of the Cointel product. From
the office of his patent attorney he phoned into the system. He concluded that the Cointel system was
"completely different" because it did not contain a database of subscribers, nor did it ask for a PIN to be
entered. Rather, so he said, the system prompted the subscriber to directly enter his or her credit card
number. Cognisant of these differences, he instructed his patent attorney to proceed with registration of the
patent. During crossexamination the plaintiff was referred to a discovered document, exhibit "B124", dated 8
January 1999, as an indication that he was misstating the method by which the Cointel Autocharge system
functioned. It is a document headed "Autocharge", and is a pro forma letter addressed to applicants for a
credit card Autocharge facility. It states that after registration "we will contact you shortly thereafter to inform
you of your personal 4digit PIN number that will allow you to use the Autocharge system". It goes on to say
that once registered: "To recharge you will simply need to dial 100 from your Vodago phone, select the credit
card option and enter your personal 4digit PIN when prompted." When confronted with the contradiction
between this document and his testimony, the plaintiff referred to a Memorandum of Agreement between
Vodacom (Pty) Ltd and Cointel (Pty) Ltd (exhibit "B110") dated 12 August 1997 where the following is stated
in the preamble:
"Vodacom intends to introduce a recharge facility for the user without the user having to purchase an airtime voucher,
but instead merely dialing on the handset the short dial access number 100 and thereupon entering his bank card
number which will facilitate the advance of credit and thus enabling the user telephone to be recharged."
The plaintiff contended that this depiction of the Cointel system accorded with how the system operated
when he tested it shortly before filing his patent specification.
Page 396 of [2009] 1 All SA 381 (T)
[50] The plaintiff referred also to exhibit "B237", an internal Vodacom Engineering Intelligent Networks
memorandum dated 21 August 2000 headed "Cointel Credit Card Recharge". The relevant paragraph of this
document reads:
"Cointel approached Vodacom in 1997 with a proposal to implement a recharge service whereby a user would use his
credit card via an IVR system . . . to purchase a Vodago recharge PIN. The user would then use this PIN to recharge
his account. This recharge PIN would have been obtained from a centralised database maintained by the company
ECNet.
Vodacom had already looked at implementing such a service in conjunction with Siemens with the initial
implementation of the Vodago service and for that reason an authentication PIN was provided for on the 5151 DTMF
menu (balance enquiry by voice access). When it was decided that Siemens would not provide this service,
alternative options were considered and as such the authentication PIN was also removed for the sake of simplicity."
Further in the document under the heading "Development", the following is stated:
"Vodacom suggested it would be more feasible to provide this service using a credit card to update the user account
directly on the IN platform since the use of a recharge PIN in such a transaction was superfluous."
The plaintiff contended in his testimony that these passages indicate that the authentication PIN never
functioned before that date and confirmed that when he tested the system in 2000 "it worked so that you do
not have to enter a PIN and that you have to enter your bank card number".
[51] In response counsel referred the plaintiff again to the Autocharge application form of 1999 (exhibit "B124")
which includes the statement: