Constitutional Court’s ‘Please Call Me’ ruling is a disturbing reflection on the judiciary

The Constitutional Court found a monumental failure of the application of facts and law to the issues that the Supreme Court of Appeal was required to determine.

By Professor Balthazar

13 Aug 2025

The litigation between Nkosana Makate and Vodacom is now way into its second decade. In 2000, Makate conceived the Please Call Me idea while working at Vodacom. The next year, Vodacom launched the Please Call Me service.

In 2008, Makate sought relief from the courts, seeking compensation for his idea. Eight years later, the Constitutional Court, after earlier litigation in the lower courts, ruled in favour of Makate, confirmed that he was entitled to be compensated and ordered Vodacom to negotiate a reasonable compensation with him.

Those negotiations culminated in an offer by the chief executive of Vodacom to pay Makate R47-million. Makate was dissatisfied with this amount and took that determination on review to the high court. Subsequently, the matter reached the Supreme Court of Appeal (SCA).

The SCA ordered that Makate be entitled to between 5% and 7.5% of the total revenue of the Please Call Me product, together with interest.

When the matter reached the Constitutional Court as a result of an appeal by Vodacom – which was understandable given the billions of rands that it stood to pay to Makate in the absence of an appeal from the majority judgment of the SCA – the issue before the court was whether the majority of the SCA substantially misunderstood or disregarded key components of evidence before it.

Aware of the importance of the dispute and the related legal arguments for the future jurisprudence of South Africa and its implications for appeals generally, the Constitutional Court noted that an unsatisfactory or even incorrect process of reasoning, and hence defects in a judgment, cannot, absent further consideration, be equated to a failure by a court to discharge its duty of properly considering the evidence and therefore fulfilling what was referred to as the duty of proper consideration.

In short, as the court said:

“What is important is that the flaws in the assessment (of the judgment) must be so fundamental and pervasive as to vitiate the court’s judgment. There must have been a failure in the performance of what I will call a duty of proper consideration.”

Writing for a unanimous court, Justice Mbuyiseli Madlanga noted:

“Once vitiated by flaws of the nature I have described, a court’s decision is a non-decision. Litigants go to court to have their legal disputes decided here and the need for a court to decide the dispute is an important component of the fair hearing right. The decision that is vitiated by malperformance of the duty of proper consideration is not a decision as envisaged in s34 (of the Constitution, being in the context the right of a fair hearing).

Reaching beyond South African law to the jurisprudence of the European Court of Human Rights, Justice Madlanga found that South African law was required to impose a duty of proper consideration on all South African courts and that a failure to comply with that duty would, in effect, mean that there has been no proper judgment delivered by a court.

What makes the judgment of the Constitutional Court even more significant is not only that it imposes a duty of proper consideration upon all courts, but that in this case it was dealing with the majority judgment of the second-highest court of South Africa, the SCA. Of the majority judgment in the SCA, Justice Madlanga said:

“I cannot but say that the judgment is thinly reasoned. At times it is characterised by statements that evince a disregard for or lack of awareness of the facts and issues.”

The court went on to say that the approach adopted to the affidavit evidence, which constituted the record before the court (the so-called Plascon-Evans rule used every day in all our courts), was improperly applied: “The majority was totally confused as to the issue or issues to which the application of the rule related.”

There was also considerable debate that the majority had misapplied the so-called Bekker Test which is established in law to the effect that a valuation of compensation can be rectified on equitable grounds where the value given does not reflect the judgement of a reasonable person; that is the judgment in this case of the CEO’s offer of R47-million as compensation to Makate.

In other words, was the CEO’s decision exercised unreasonably, irregularly or wrongly so as to lead to a patently inequitable result? According to the Constitutional Court, the majority exhibited no grasp of the implications of this established test.

There was one level of criticism that was even more important. That was the description of the confusion on the part of the majority in the Supreme Court of Appeal as “symptomatic of a court that did not appreciate the facts and issues it had to determine”.

On a narrow reading of this judgment, it may well be that it was only the failure to apply the Bekker Test to the evaluation of the CEO’s valuation, which was central to the success of the Vodacom appeal.

But the development of a duty of proper consideration and the excoriation of the majority judgment of the SCA takes this latest offering by the Constitutional Court into far more significant terrain.

In the first place, courts and tribunals will now find their judgments and reasoning being subjected to the doctrine of proper consideration. Failure to appreciate the facts and issues which a tribunal or court has to determine could well result in the annulment of the judgment or decision.

Second, the Constitutional Court was dealing with the second-highest court in the country. The fact that it found so monumental a failure of the application of facts and law to the issues that the SCA was required to determine is a most disturbing reflection on the judiciary.

For a long time, there has been considerable complaint that the Judicial Service Commission (JSC) has not fulfilled its function of ensuring that properly qualified candidates make their way on to the courts and, in particular, to the higher courts of South Africa.

This judgment surely imposes upon the JSC an even more onerous obligation to do its job to ensure that the courts of South Africa in general, and the higher courts in particular, are sufficiently staffed with lawyers who can exercise a duty of proper consideration. DM

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