- Large corporations use legal processes to exhaust less-resourced opponents, R13m legal bill forced Makate to settle.
- South Africa risks failing to recognise talent and reward innovation, 17 years of litigation for Makate shows systemic issues.
- Precedent warns individuals against challenging big corporations; justice delayed often equals justice denied.
Large multinationals dislike being taken to court, so this announcement was quite expected. When issues of justice and human dignity arise, they generally prefer to settle out of court.
The recent court outcome, where the court imposed an R13 million legal bill, may have had something to do with forcing the expensive Nkosana Makate to sign.
This corporate strategy is quite simple and straightforward, if companies agree to go to court they "weaponise" legal processes to drain the complainant. In terms of this practice, a larger or wealthier entity uses the legal process itself to exhaust an opponent (often a less-resourced individual or small entity). This tactic is often referred to as litigation abuse or using scorched-earth litigation tactics.
When justice is weaponised against the weak
The case of Mankayi v AngloGold Ashanti Ltd in 2011 is a good example to illustrate the point. Although, this case opened the door for thousands of mineworkers to pursue class-action lawsuits against mining companies, Thembekile Mankayi died before the case was settled out of court.
Makate was lucky to see some "justice" while still alive. The undisclosed settlement, rumoured around R400 million, is neither a win nor justice given that Makate has been drained by over 17 years of litigation and stress. Imagine if he'd gotten the R400 million, say 15 years ago, there may have been better things happening in tech innovation in South Africa. Justice delayed is justice denied!
Instead of rejoicing, people should be concerned about two things. First, South Africa may not be the place that recognises talent and reward innovation. With over 62 % unemployment, there is a reason to be worried. Second, it is important to recognise that the law may not be about justice but a terrain for the rich. The Makate case illustrates this travesty.
A precedent has been set again: never try to take on the Big Boys! Anyone who dares challenge big corporations must either face legal violence like Messrs Makate and Mankayi or deathly violence like the ex-Lonmin workers in Marikana.
Siy yi banga le economy!
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