The Constitutional Court has blasted the Supreme Court of Appeal (SCA), accusing it of ignorance and granting "Please Call Me" inventor Nkosana Makate an appeal he never sought.
Delivering the court's judgement on Thursday former acting chief justice Mbuyiseli Madlanga charged that the SCA also accepted whatever Makate told them when it ruled that he was entitled to between 5% and 7,5% revenue generated by Vodacom through Please Call Me since its inception in 2001.
"Another feature that I must touch on is the apparent readiness of the Supreme Court of Appeal to accept whatever Mr Makate said," said Madlanga on Thursday, before referring the 24-year-old legal battle between Makate and the cellphone network giant back to the SCA.
On Thursday, the ConCourt was expected to bring to a close the court matter by delivering a judgement that would determine how much was due to Makate. However, this was not to be as the Apex court sent the matter back to the SCA for determination, which Madlanga said should be made by a new panel of judges.
In the judgment, Madlanga said the SCA acted beyond its jurisdiction and was in breach of law in Vodacom's appeal because Makate did not submit a cross appeal.
"First, the majority in the Supreme Court of Appeal impermissibly strayed onto terrain that required a cross-appeal by Mr Makate, which there was not. Secondly, it disregarded the true issues before it, with the result that there was a total failure of justice."
The ConCourt added that Vodacom had submitted that a court that determines an issue that is not before it acts beyond its jurisdiction and thus in breach of the rule of law and the right to a fair hearing protected in section 34 of the Constitution.
First, the majority in the Supreme Court of Appeal impermissibly strayed onto terrain that required a cross-appeal by Mr Makate, which there was not. Secondly, it disregarded the true issues before it, with the result that there was a total failure of justice.
— Former acting chief justice Mbuyiseli Madlanga
Makate had approached the SCA to challenge Vodacom CEO Shameel Joosub’s compensation offer of R47m, which he rejected in 2019. Instead, the SCA ruled that Makate was entitled to between 5% and 7.5%, plus interest, of the total revenue Vodacom had generated from the Please Call Me service.
In February last year, Vodacom approached the ConCourt to quash a ruling by the SCA that it should make a new compensation offer to Makate, arguing that the effect of the SCA ruling would translate to a payout of possibly up to R63bn. Makate denied this, saying it's an exaggeration as he estimated his compensation, guided by the SCA ruling, would be about R9.6bn.
Madlanga, in the judgement, said the ConCourt sided with Vodacom in its application for leave to appeal against the February 2024 SCA ruling.
"The SCA held that it could find no objection to Mr Makate’s models and that there was no evidence that his computation was wrong escapes me. This is a very fundamental issue because the computation is what the entire litigation was about. This means the SCA was unaware of or disregarded evidence on what the entire case was about. If that is not a total failure in the performance of the duty of proper consideration, I do not know what is," he said.
The ConCourt said insofar as the SCA setting aside the high court order and substituting it with its own, Vodacom contends that the SCA breached its right to a fair hearing guaranteed in section 34 of the Constitution.
The apex court granted Vodacom leave to appeal and instructed that the order of the SCA be set aside. "The matter is remitted to the SCA to be reheard by a differently constituted panel of judges of the court," he said.
This decision means that the matter will take even longer to be settled as the ConCourt has sat on it for 15 months before yesterday's ruling.
Makate came up with the Please Call Me concept in 2001 while working for Vodacom as a trainee accountant, and over the years he has been in court fighting to be compensated for his " brilliant idea" as stated by Vodacom.
Reacting to the ruling outside the court, Makate said he hoped the SCA will give a judgment that "stands the test".
"We have to abide with the court’s decision, and we are going back to the SCA because they [ConCourt] have said that the SCA must apply themselves properly,” he said.
Additional reporting- Jeanette Chabalala
SowetanLIVE
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