02-08-2025
Apex Court's surprise ruling extends Makate's Please Call Me Battle
Nqolokazi Nomvalo ss Head of Legal: Operations at Life Healthcare Group.
Image: Supplied
FOR nearly two decades, South Africans have watched the legal saga between Vodacom and its former employee, Nkosana Makate, unfold like a courtroom drama with no final act.
The latest twist, a unanimous Constitutional Court judgment handed down on Thursday, has reignited public interest and legal debate.
In a development that stunned many legal observers and defied predictions of finality, the apex court has remitted the case back to the Supreme Court of Appeal.
It will now be reconsidered by a freshly constituted bench. This move injects fresh uncertainty into a saga long believed to be approaching its conclusion. But what does this mean, and why does it matter?
It is important to clarify that Makate's original idea was a simple yet powerful proposition: a mobile user with no airtime should be able to 'buzz' another user, prompting them to call back.
Vodacom, recognising the creativity, developed the concept into the now-famous "Please Call Me" free message.
This version allowed for costless transmission and universal utility. That difference matters, especially when assessing the various compensation models, which have ranged from employee-equivalent remuneration to revenue-sharing frameworks.
The Supreme Court of Appeal had previously affirmed the Gauteng High Court's decision in Makate's favour and went further, controversially substituting its own compensation formula and awarding Makate 5 to 7.5 percent of Please Call Me revenue.
Vodacom challenged this ruling, arguing that the SCA overstepped its bounds as an appellate court, particularly because Makate had not lodged a cross-appeal.
The Constitutional Court, being the highest court in the land, granted Vodacom leave to appeal and upheld its challenge.
Justice Mbuyiseli Madlanga, writing for a unanimous bench in what is widely regarded as his swan judgment before retirement, agreed.
The Constitutional Court held that the SCA had impermissibly ventured into terrain that required a cross-appeal and had disregarded the true issues before it.
This resulted in a failure of justice, specifically a breach of Vodacom's right to a fair public hearing as guaranteed under section 34 of the Constitution.
The Constitutional Court has directed that the case return to the SCA, where a different panel of judges will now consider it afresh. It marks a rare judicial reset in a case that has already passed through every major court in the country.
The legal significance of this moment cannot be overstated. The Constitutional Court has reinforced the boundaries of appellate authority and revived critical scrutiny around the quantum of fair compensation.
The referral order compels the SCA to take a fresh look, with a new bench and a sharper lens, at the determination originally made by Vodacom's CEO.
That figure was R47 million, reached after extensive modelling and expert input. It followed a failed negotiation between Makate, who proposed R20.2 billion, and Vodacom, which offered R10 million. Makate has challenged the CEO's determination as woefully low, especially in light of the widespread success of the Please Call Me service.
Beyond the courtroom, this case has come to represent the struggle for equitable recognition of intellectual contributions, especially by employees in corporate ecosystems.
The 'Please Call Me' litigation has gripped the public imagination. It's not just because of the staggering figures involved.
It speaks to something profoundly South African: the courage to claim one's voice and the power of innovation born in unlikely places.
As the legal process restarts again, one hopes that the eventual outcome will honour not just the merits of law but the deeper values it serves—justice, fairness, and transformative equity.
That would be a fitting tribute to Justice Madlanga's legacy of principled clarity and constitutional fidelity.
(Nomvalo is Head of Legal: Operations at Life Healthcare Group. She began her career in corporate litigation and commercial law at Cliffe Dekker Hofmeyr Inc. Her expertise also encompasses traditional arts, heritage preservation, transformation, and the promotion of women's and children's rights. Her views don't necessarily reflect those of the Sunday Tribune or Independent Media)
SUNDAY TRIBUNE
