WILL IT EVER END- THE MAKATE ARC

Its strange really, during the reading of the summary of this judgment, i thought about the movie, The secrete life of Walter Mitty. I then went on pintrest to look at images that i could use for this upload. I came across this image and it was the universe was communicating with me because this image reminds of me that people and how beautiful of a picture it is. Anyway, as it customary, the image bears no information about the words written herein.

In this blog post we explore the judgment through the FILAC equation- wherein we analyse the judgement by exploring its facts, issues, legal rules, application of the law and the court conclusion. We cap everything off by touching on the potential future implication of this judgment as well as its impact on the lived realities of the people.

Facts

The matter before the Constitutional Court was the culmination of nearly two decades of litigation concerning the compensation owed by Vodacom to Mr. Nkosana Kenneth Makate for his 'Please Call Me' (PCM) concept.

1. Initial Dispute Resolution: The first round of litigation ended with a 2016 CC judgment, which declared that a binding agreement existed and ordered Vodacom and Mr. Makate to negotiate reasonable compensation. If negotiations failed (resulting in a deadlock), Vodacom’s Chief Executive Officer (CEO), Mr. Shameel Joosub, was mandated to determine the reasonable compensation,.

2. CEO Determination and High Court Review: The parties reached a deadlock (Mr. Makate proposed R20.2 billion; Vodacom offered R10 million). The CEO determined the compensation to be R47 million. Mr. Makate sought judicial review of this determination at the Pretoria High Court (GP), which found in his favour and ordered that the matter be remitted to the CEO for recalculation and a fresh determination within certain specified parameters,.

3. Supreme Court of Appeal (SCA) Decision: Vodacom appealed the GP's remittal order. Mr. Makate did not cross-appeal,. The SCA found the CEO's determination was wrong and dismissed Vodacom's appeal. Crucially, the SCA then set aside the GP’s order and, instead of remitting the matter, substituted the order with its own. This substituted order directed that Mr. Makate was entitled to 5%–7.5% of PCM revenue, calculated according to Mr. Makate's financial models, plus interest,,. This substituted order substantially adopted the content of Mr. Makate's relief sought in his initial High Court notice of motion.

Issues for the Court to Determine

Vodacom applied to the CC for leave to appeal against the SCA's judgment, arguing that the SCA had committed a total failure of justice,. The CC had to determine two main issues:

1. Failure of Justice/Fair Hearing: Whether the SCA disregarded the facts and issues presented before it to such an extent that it amounted to a total failure of justice, thereby breaching Vodacom’s right to a fair public hearing guaranteed under section 34 of the Constitution,,. This ground focused on the SCA’s alleged confusion about or disregard for evidence concerning the complex valuation models and computations,.

2. Absence of Cross-Appeal/Rule of Law: Whether the SCA impermissibly granted Mr. Makate relief (the substituted compensation order) which he had not sought by way of cross-appeal, thus acting beyond its jurisdiction and breaching the rule of law entrenched in section 1(c) of the Constitution,.

Legal Rules and Principles Applicable

The CC relied on core constitutional and civil procedure principles:

• Right to a Fair Hearing (Section 34, Constitution): The fair hearing right lies at the heart of the rule of law. This right requires courts to engage in the duty of proper consideration by deciding all material issues and properly examining the submissions and evidence adduced by the parties,,.

• Duty to Provide Adequate Reasons: The performance of the duty of proper consideration is assessed by the adequacy of the court's reasons for judgment,. Adequate reasons must sufficiently explain how the court reached its ultimate conclusions, demonstrating the resolution of material factual and legal disputes and how the law was applied to the facts,,. Woefully lacking reasons are symptomatic of a flawed assessment and a breach of the duty of proper consideration.

• Powers of the Appellate Court (Cross-Appeal): A respondent seeking a variation of an order appealed against must cross-appeal. In the absence of a cross-appeal, an appellate court generally may not alter the order to the detriment of the appellant,. Deciding a case that was not before it (due to lack of a necessary cross-appeal) is contrary to the right to a fair hearing under section 34,.

• Constitutional Threshold: Flaws in assessment that are so fundamental and pervasive as to vitiate the court's judgment constitute a failure of justice, engaging the CC's constitutional jurisdiction,,.

Court’s Application of the Legal Rules and Principles to the Facts

The CC found that the SCA failed fundamentally in its constitutional duties:

1. Failure of Proper Consideration: The SCA judgment was found to be "thinly reasoned" and marked by confusion and statements evincing a disregard for, or unawareness of, the extensive factual and expert evidence placed before it by both parties,. The SCA stated it could find "no objection" to Mr. Makate's compensation models, a position deemed inexplicable given that the models were the central point of contest throughout the appeal,. The court's lack of awareness regarding the CEO's extensive reasoning for rejecting Mr. Makate's figures or the contested nature of the calculations on call duration and incremental revenue constituted a breach of the duty of proper consideration,,,. The real appeal was not decided.

2. Breach of Cross-Appeal Rule: The SCA impermissibly granted Mr. Makate the substituted order (5%–7.5% revenue share, plus interest) despite him not having filed a cross-appeal against the GP's remittal order. The substitution order was not ventilated before the SCA, thereby breaching Vodacom’s right to a fair hearing under section 34 of the Constitution, as Vodacom was deprived of the opportunity to make submissions on that possibility,.

Court Conclusion, Order, and Reason for Judgment

Conclusion and Reason for Judgment: The CC concluded that the SCA's flaws in the assessment during the adjudicative process were so fundamental and pervasive as to vitiate its judgment, constituting a total failure of justice and a breach of Vodacom’s right to a fair hearing and the rule of law,,,. The CC emphasized that a vitiated decision is a "non-decision," failing the court's raison d'être.

Order: The CC granted leave to appeal and made the following order:

1. Leave to appeal is granted,.

2. The appeal is upheld,.

3. The order of the Supreme Court of Appeal is set aside,.

4. The matter is remitted to the Supreme Court of Appeal to be reheard by a differently constituted panel of judges of that court,.

5. Each party must pay their own wasted costs in respect of the abortive hearing of the matter in the Supreme Court of Appeal,.

6. The first respondent (Makate) must pay the applicant’s (Vodacom) costs in the CC, including the costs of three counsel,.

The CC chose remittal (Order 4) because the issues that remained for determination were primarily factual questions that do not ordinarily fall for determination by the CC, which focuses on constitutional issues and points of law of general public importance.

Future Implication and Its Impacts on the Lived Realities of People

The judgment has significant implications for judicial practice and the rights of litigants:

• Judicial Accountability and the Rule of Law: The decision reinforces the constitutional mandate that all courts, including the SCA, must demonstrate active engagement with the substance of a dispute, evidence, and legal arguments. Failure to provide adequate reasons for essential conclusions is symptomatic of a fundamental failure to perform this constitutional duty,, establishing a critical threshold for judicial review.

• Appellate Procedure Clarity: The ruling serves as a stark reminder that if a respondent seeks to obtain a variation or substitution of an order that prejudices the appellant (even if the substitution superficially appears favorable), a formal cross-appeal must be brought,. This prevents procedural unfairness and ensures the other party is called upon to answer the specific case against them.

• Impact on Complex Litigation: In complex and financially significant litigation, particularly where conflicting expert evidence is involved, judges are under an increased obligation to articulate their reasoning process clearly, identifying how factual disputes were resolved and how the law was applied, upholding the expectation of transparency in the legal system,.

• Impact on Lived Realities: While the case involved corporate law, the underlying dispute concerns appropriate compensation for an individual's intellectual property. The CC's insistence on procedural fairness ensures that judicial outcomes are perceived as legitimate, especially in high-stakes disputes that can determine the financial fate of individuals and large companies. The outcome validates the principle that legal victory must be achieved through fair process, not arbitrary judicial intervention.

DISCLAIMER: THIS DOES NOT CONSTITUTE LEGAL ADVISE NOR ACT AS LEGAL AUTHORITY FOR THE SUBJECT DISCUSSED. THIS IS BASED ON AN IDEA, A CURIOSITY AND DOOM SCROLLING ON SAFLII. CONSULT YOUR ATTORNEY, PREFERABLY LOCAL ATTORNEY AND TAKE IT FROM THERE

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