By Johnathan Paoli
The Constitutional Court has ruled that the matter between Vodacom and “Please Call Me” inventor Nkosana Makate must return to the Supreme Court of Appeal (SCA) for a fresh hearing by a new panel of judges, in the latest twist in the decades-long legal battle.
The decision, delivered by Acting Deputy Chief Justice Mbuyiseli Madlanga in his final judgment on the Constitutional Court bench, overturns the SCA’s 2024 ruling that ordered Vodacom to compensate Makate between 5% and 7.5% of the revenue generated by the popular callback service over 18 years.
“Without deciding them, purely to demonstrate the Supreme Court of Appeals’ failure to comply with the duty of proper consideration, we cannot suddenly be at large, as the legal language says, to determine those factual issues. The matter must be remitted to the Supreme Court of Appeal for a proper determination of the appeal, and that must be before a differently constituted panel,” Madlanga ruled.
The court found in favour of Vodacom’s appeal, ruling that the SCA failed in its duty to properly consider the facts and provide adequate reasoning in its earlier judgment.
In its order, the apex court granted Vodacom leave to appeal, upheld the appeal, set aside the SCA’s February 2024 ruling, ordered that the case be re-heard by a different SCA panel, directed that each party bear its own costs for the previous SCA hearing, and ordered Vodacom to pay Makate’s costs for the Constitutional Court hearing, including those of three counsel.
Madlanga described the “Please Call Me” saga as a case of “unending litigation”.
The legal dispute dates back to 2008, when Makate first filed a suit claiming compensation for his idea, which allows users to send free callback messages when they lack airtime.
He first proposed the idea in 2001 to his then-supervisor at Vodacom, where he had been employed as a young accountant.
He was allegedly promised compensation should the idea prove viable, an agreement that Vodacom would later deny existed.
In 2016, the Constitutional Court ruled that Vodacom was indeed obligated to negotiate reasonable compensation with Makate, leading to Vodacom CEO Shameel Joosub’s R47 million offer in 2019.
Makate rejected the amount as inadequate, triggering renewed litigation.
In a ruling in February last year, the SCA instructed Vodacom to compensate Makate between 5% and 7.5% of all revenue generated by “Please Call Me” since its inception.
Estimates varied widely with some analyses suggesting a payout between R29 billion and R55 billion, while the SCA’s minority judgment proposed a lower figure of around R186 million.
Makate later stated he would accept R9.4 billion as a fair settlement.
However, Vodacom challenged the ruling, arguing the SCA overstepped by substituting its own compensation calculation for that of the High Court and by adopting financial data supplied by Makate’s team without critical scrutiny.
The Constitutional Court agreed, with Madlanga noting that the SCA failed to “provide adequate reasons for its judgment and disregarded or was unaware of certain material facts and issues”.
Reacting before the judgment was delivered, Makate expressed cautious optimism.
“It’s been eight months since the hearing. I’m hoping the judges have applied their minds properly and that this will bring finality,” he said.
However, Thursday’s ruling means the legal battle continues.
Vodacom has maintained that a reasonable payout should be around R47 million, while Makate insists he is owed billions.
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