ConCourt has beaten me to the ground — Makate

“Please Call Me” inventor Nkosana Makate feels “beaten to the ground” by the Constitutional Court after being made to pay costs in a legal defeat in his protracted battle for compensation with Vodacom.

The apex court ruled in favour of the telecommunications giant and referred the dispute back to the Supreme Court of Appeal (SCA) in Bloemfontein after ruling that the SCA had not properly considered the matter.

In its ruling, which upheld Vodacom's appeal of an SCA judgment, the Constitutional Court set a new constitutional standard — the “duty of proper consideration” — which it recognised as “an integral part of the constitutional right to a fair hearing”.

The legal battle, which has played out in multiple courts for two decades, is now centred on what fair compensation would be for Makate's lucrative idea.

A dejected Makate told the Sunday Times he viewed the ruling as “very harsh” for a litigant “who does not have unlimited resources to fight for justice”.

"[The Constitutional Court] says to me the SCA botched things without [ensuring] proper consideration, then slaps me with costs. For what?”

Makate said it felt as if the court was sending “a strong message” to him in a ruling that sought jurisprudence from beyond South Africa's borders which it used to set a new standard.

“I am being beaten to the ground by the highest court in the land ... being slapped with costs is like being beaten to the ground. It's sending a message to me that 'this is what will happen to you',” Makate said. “It's a strong message to those who litigate against giants and corporates. You're made to carry the load of a botched hearing by our own judges.”

Makate, an accountant at the South African Local Government Association, said the ruling may make other litigants “scared” of the Constitutional Court. 

“I feel that the Constitutional Court moved away from the spirit they had in November [2024] when we first appeared in finalising this matter, and I think that's injustice,” he said.

I feel that the Constitutional Court moved away from the spirit they had in November [2024] when we first appeared in finalising this matter, and I think that's injustice.

He said the ruling had “somewhat shifted” his faith in the court.

The overturned SCA judgment set aside a R47m offer that Vodacom CEO Shameel Joosub made to Makate six years ago, which Makate rejected.

The SCA ordered Vodacom to pay Makate between 5% and 7.5% of the total voice revenue generated by the 'Please Call Me' service over 18 years from March 2001 to March 2021, plus interest. This could amount to at least R9bn.

At the heart of the dispute is what would constitute fair compensation and what Makate is fairly entitled to of the revenue derived from his idea. 

Outgoing judge Mbuyiseli Madlanga, who penned the unanimous ruling, which he delivered in his last sitting before retiring, said that in South African jurisprudence there was no direct support for the position that the SCA had breached the constitutional right to a fair hearing. However, a matter before the European Court Human Rights had provided the jurisprudence.

The unanimous judgment from a panel of eight that included chief justice Mandisa Maya was delivered on Thursday. Makate was ordered to pay Vodacom's costs in the matter, including the costs of three counsel.

The court found that Vodacom's right to a fair hearing was violated and that the SCA did not have the jurisdiction to substitute a court order which was also favourable to Makate.

Madlanga said that due to the size of the court record, “the complexity and novelty of the issues and the very large amount at stake, I think that is a fair and just request ... costs of three counsel will be awarded”.

"Obviously, costs in this court must follow the result. About costs of the abortive SCA hearing, none of the parties is to blame."

"Mr Makate himself saw the need to take the precaution [due to the complexity and novelty of issues] of having three counsel appear for him before us. His written argument was settled by six counsel, three of whom were silks."

He said the SCA did not consider Vodacom's evidence that sought to show that Makate's calculation of what he was entitled to may have been incorrect.

“Everything about Vodacom's case was about demonstrating that Mr Makate's computation was wrong. So there was evidence that sought to demonstrate ... whether Vodacom would have succeeded in this regard is something else.”

Madlanga also said the SCA judgment was “thinly reasoned and characterised by confusing reasoning”.

“At other times it is characterised by statements that evince a disregard for, or lack of awareness of, the facts and issues.”

Madlanga said a court “would have failed in its constitutional duties to give a case proper consideration and to give reasons for its decision if the court's judgment does not contain adequate reasons evidencing proper consideration”.

Vodacom said it was pleased with the decision and would “now review the judgment in full and take appropriate next steps”.

Makate, however, feels the court could have “corrected” the error by the SCA and put finality on the matter.

Asked if he would now consider Vodacom's offer, Makate said: “No, I am not considering Shameel's offer, I am going to the SCA.”