Acting Deputy Chief Justice Mbuyiseli Madlanga overturned the SCA’s ruling.
The Constitutional Court (ConCourt) has ruled in favour of Vodacom, sending the legal battle with Please Call Me inventor Nkosana Makate back to the Supreme Court of Appeal (SCA).
The judgment, delivered on Thursday, relates to Vodacom’s application for leave to appeal against a February 2024 SCA ruling.
The appeal, heard by the ConCourt last November, challenged the SCA’s decision to overturn Vodacom’s offer of R47 million in compensation to Makate, who developed the Please Call Me service that allows network users to send free callback messages.
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In its ruling, the SCA ordered Vodacom to pay Makate between 5% and 7.5% of the total revenue the service generated since its launch in 2001, plus interest.
While the minority judgment of the SCA estimated the compensation to be around R186 million, the majority opinion placed Makate’s potential payout between R29 billion and R63 billion.
Despite this, Makate’s legal representative told the ConCourt that his client is willing to settle for R9.4 billion.
ConCourt judgment in Vodacom vs Makate case
On Thursday, outgoing Acting Deputy Chief Justice Mbuyiseli Madlanga delivered his final judgment from the bench, describing the nearly two-decade legal saga as “an unending litigation”.
Madlanga highlighted that a 2016 ConCourt ruling had previously led Vodacom CEO Shameel Joosub to calculate R47 million following unsuccessful negotiations between the telecommunication company and Makate.
The judge noted Vodacom’s argument that the SCA had gone beyond its jurisdiction by replacing the Gauteng High Court in Pretoria’s order with its own, despite the absence of a cross-appeal from Makate.
“The Supreme Court of Appeal, thus, determined an issue that was not before it in breach of the rule of law and the right to a fair hearing protected in Section 34 of the constitution,” Madlanga said, referring to Vodacom’s argument.
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Vodacom further claimed that the SCA had ignored or misinterpreted several important facts.
However, Makate contended that the appellant court did not exceed its powers, arguing that the substitution issue had already been raised in the high court.
In a unanimous decision, the ConCourt sided with Vodacom, stating that the SCA’s handling of key issues amounted to “a total failure of justice”.
“How flawed must an assessment be for it to cross the line to constitute a failure of justice and thus a violation of the rule of law?” Madlanga asked during the ruling.
Watch the judgment below:
While acknowledging that legal proceedings are not expected to be perfect, the judge emphasised that certain mistakes in the SCA’s assessment were so significant that they went beyond “this ordinary level of human fallibility”.
“Those are errors that are so far-reaching as to result in a total failure of justice,” Madlanga said, adding that the SCA had failed to fulfil its “duty of proper consideration”.
“Once vitiated by flaws of this nature, a court’s decision is a non-decision.”
Madlanga ultimately overturned the SCA’s ruling and directed that the case be sent back to the appeal court to be reconsidered by a new panel of judges.
“The Supreme Court of Appeal failed to provide adequate reasons for its judgment and disregarded or was unaware of certain material acts and issues before it,” he ruled.
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