Johannesburg – The Constitutional Court has upheld Vodacom’s attraction in opposition to the Supreme Court of Appeal’s ruling that the telco ought to pay
“Please Call Me” inventor Nkosinathi Makate billions of rand in compensation.
Last 12 months, the Supreme Court of Appeal dominated that Vodacom ought to pay Makate 5%-7.5% of the income generated by Please Call Me over 18 years.
Some calculations utilizing these percentages place the compensation at about R9.4 billion.
However, Vodacom, which has beforehand indicated it was ready to pay R47 million, took the matter on attraction to the Constitutional Court.
In explaining the way it reached its ruling, the Constitutional Court detailed the development of the long-running case by way of the courtroom system that started in 2008.
On Thursday, 31 July 2025, the Constitutional Court handed down a unanimous judgment authored by Madlanga ADCJ in an utility for go away to attraction in opposition to a judgment of the Supreme Court of Appeal, handed down on 6 February 2024.
“This utility was yet one more occasion of the never-ending litigation between Vodacom (Pty) Limited, the applicant, and Mr. Nkosana Kenneth Makate, the primary respondent, a former worker of Vodacom,” the apex courtroom stated.
The litigation, which spanned slightly below twenty years, involved compensation owed by Vodacom to Mr Makate for the “Please Call Me” (PCM) thought.
The first spherical of litigation culminated in a judgment through which the Constitutional Court, in 2016:
- (a) declared that Vodacom was sure by an settlement concluded by Mr Makate and Mr Phillip Geissler, the then Director of Product Development and Management at Vodacom, in respect of the PCM thought;
- (b) ordered that Vodacom and Mr Makate negotiate in good religion to find out affordable compensation payable to Mr Makate when it comes to the settlement; and
- (c) mandated that within the occasion of disagreement on affordable compensation, Vodacom’s Chief Executive Officer (CEO), the second respondent, would break the impasse and decide such compensation.
The second, and present, spherical of litigation commenced as follows.
Negotiations between Mr. Makate and Vodacom had been unsuccessful and the matter was referred to the CEO.
“After a thoroughgoing course of the CEO decided that R47 million was affordable compensation for Mr. Makate,” the Constitutional Court stated.
Dissatisfied, Mr. Makate took the CEO’s willpower on evaluate to the High Court of South Africa, Gauteng Division, Pretoria.
The excessive courtroom present in Mr. Makate’s favour and ordered a remittal of the willpower to the CEO, topic to sure parameters.
“Vodacom appealed to the Supreme Court of Appeal, which dismissed the attraction and, additional, substituted the excessive courtroom order with its personal order,” defined the apex courtroom.
The pertinent portion of of the order reads: “Mr. Makate was entitled to five%-7.5% of the whole income of the PCM product, along with mora curiosity thereon, alternatively, curiosity when it comes to the Prescribed Rate of Interest Act 55 of 1975; and that the whole income of the PCM product needs to be calculated based on the computation fashions for compensation proposed by Mr Makate”.
In this Court, Vodacom’s foremost arguments in opposition to the Supreme Court of Appeal’s judgment had been twofold.
First, Vodacom submitted that the Supreme Court of Appeal acted past its jurisdiction by substituting the High Court order with an order of its personal, the place Mr Makate didn’t cross-appeal in opposition to the order of the High Court.
The Supreme Court of Appeal thus decided a difficulty that was not earlier than it in breach of the rule of legislation and the correct to a good listening to protected in part 34 of the Constitution.
Secondly, Vodacom averred that there have been a number of severely disputed points on this matter, in respect of which swathes of proof had been adduced and written and oral argument was introduced by each events, “all of which had been, based on Vodacom, disregarded or misunderstood by the Supreme Court of Appeal”.
Vodacom argued that the Supreme Court of Appeal’s disregard of the true points earlier than it constituted a complete failure of justice that breached the rule of legislation and violated Vodacom’s constitutional proper to a good listening to.
Mr. Makate countered that this courtroom had neither constitutional nor basic jurisdiction to listen to the matter, because it primarily involved a factual dispute.
Mr. Makate argued that the Supreme Court of Appeal didn’t exceed its jurisdiction, because the substitution problem was pleaded earlier than the excessive courtroom and it was related to the proceedings earlier than the Supreme Court of Appeal.
As a outcome, the appropriateness of that substitution was absolutely ventilated by the events earlier than the Supreme Court of Appeal.
Mr. Makate, additional, argued that the Supreme Court of Appeal didn’t disregard or misconstrue the proof or info earlier than it.
In contemplating the Supreme Court of Appeal’s judgment, the Constitutional Court recognised that the train concerned an evaluation of the info within the matter.
It clarified how this evaluation differed from that involving a purely factual dispute, reminiscent of in S v Boesak [2000] ZACC 25 and Mbatha v University of Zululand [2013] ZACC 43, which might not in any other case have interaction its jurisdiction.
In this case, nonetheless, the Constitutional Court defined that the aim of its evaluation was to determinate whether or not the Supreme Court of Appeal considerably misunderstood or disregarded, amongst different considerations, sure key points and proof earlier than it with the outcome that there was a complete failure of justice in breach of the rule of legislation and the honest listening to proper protected in part 34 of the Constitution.
Since this was based on the rule of legislation and the honest listening to proper, the Court concluded that its constitutional jurisdiction was engaged.
In its evaluation of the Supreme Court of Appeal’s judgment, the Constitutional Court formulated a brand new constitutional commonplace, the “responsibility of correct consideration”, and recognised it as an integral element of the constitutional proper to a good listening to.
In phrases of the rule of legislation and the constitutional proper to a good listening to, a courtroom ought to have regard to all materials proof and all materials submissions bearing on the problems earlier than it.
Albeit not solely, a courtroom can show that it has discharged its responsibility of correct consideration if it has offered enough causes for its judgment, which the Constitutional Court has termed the “responsibility to supply causes”.
The “responsibility to supply causes” pertains to whether or not a courtroom has sufficiently defined the way it reached its final conclusions.
This is dependent upon the complexity or in any other case of every case.
Ultimately, enough causes demand that every of the primary points within the case are handled by, for instance, figuring out every such problem, explaining how and why the courtroom has resolved any materials factual dispute in a selected means and explaining how and with what outcome the courtroom has utilized the legislation to the info.
In South African jurisprudence, there was no direct assist for the place {that a} courtroom breached the constitutional proper to a good listening to if it did not discharge its responsibility of correct consideration.
However, for assist, the Constitutional Court referred to and relied upon worldwide and international authorities which have recognised the responsibility of correct consideration, albeit not referring to it as such, and the responsibility to present causes.
This included the jurisprudence of the European Court of Human Rights, which recognised the responsibility of correct consideration and the responsibility to present causes as integral to the correct to a good listening to contained within the European Convention on Human Rights.
The Constitutional Court cautioned that unsatisfactory, and even incorrect, reasoning and defects in a judgment don’t essentially equate to a failure by a courtroom to discharge its responsibility of correct consideration.
“The responsibility of correct consideration is in regards to the substance of a judgment considered holistically,” stated the Constitutional Court.
“In brief, a courtroom fails in its constitutional responsibility of correct consideration and to present causes for its choice if a courtroom’s judgment doesn’t comprise enough causes evidencing such correct consideration.
“Therefore, flaws within the evaluation throughout the adjudicative course of which are so basic and pervasive as to vitiate the courtroom’s judgment represent a failure of justice and, thus, a breach of the rule of legislation and the honest listening to proper assured in part 34 of the Constitution.”
The Constitutional Court then thought-about whether or not the Supreme Court of Appeal’s judgment breached the responsibility of correct consideration, as assessed by way of the responsibility to supply enough causes.
On an evaluation of the Supreme Court of Appeal’s judgment, and figuring out sure key examples in it, the Constitutional Court held that the Supreme Court of Appeal:
- (a) failed to supply enough causes for its judgment;
- (b) disregarded or was unaware of sure materials info and points earlier than it;
- (c) at occasions, merely highlighted the events’ arguments in respect of central points however didn’t have interaction with these arguments in any significant means;
- (d) did not assess proof that was adduced by the events, which it must have assessed; and
- (e) readily accepted no matter Mr Makate proffered with out explaining why it did so.
The judgment offers full substantiation on all these.
Based on these holdings, the Constitutional Court concluded that the Supreme Court of Appeal did not discharge the responsibility of correct consideration.
The Court held that this failure violated the rule of legislation and Vodacom’s constitutional proper to a good listening to.
The Constitutional Court additional held that, “absent a cross-appeal by Mr. Makate in opposition to the order of the High Court, the Supreme Court of Appeal didn’t have jurisdiction to substitute its personal order – additionally beneficial to Mr. Makate – for that of the High Court”.
Vodacom had raised different grounds of attraction.
The Constitutional Court held that, having disposed of the 2 points mentioned, it didn’t want to handle these different grounds.
Accordingly, the Constitutional Court upheld the attraction with prices and remitted the matter to the Supreme Court of Appeal for the attraction to be heard earlier than a otherwise constituted panel.
The Full judgment: here
