Makate, Vodacom Please Call Me case back in court

Published: 6 hours ago

Vodacom and Nkosana Kenneth Makate will return to the Supreme Court of Appeal (SCA) on 18 November 2025 for a re-hearing of the mobile operator's challenge to a 2022 ruling of the Pretoria High Court.

The Judge President of the Supreme Court, Mahube Betty Molemela, set the date after Vodacom and Makate's legal teams could not agree on one. The parties are currently exchanging papers for the hearing.

This comes after the Constitutional Court overturned a controversial SCA ruling that made it impossible for Vodacom to determine an appropriate payout for Makate's idea.

The SCA dismissed Vodacom's appeal against a High Court ruling, which ordered the mobile operator to recalculate the compensation owed to Makate and prescribed certain variables to be used.

In dismissing the appeal, the SCA also substituted the High Court's order with its own, ordering that Vodacom must pay between 5% and 7.5% of the voice revenue that Please Call Me generated over 18 years.

It also ruled that Vodacom must use Makate's models to calculate the appropriate amount and must add interest over the period.

Vodacom applied to the Constitutional Court to appeal the SCA's order, arguing that the judges concurring with the majority judgment had failed to consider critical evidence, denying its right to a fair trial.

The mobile operator also argued that the SCA's order was unenforceable, as it created a range of compensation between R29 billion and R63 billion. Additionally, it was unclear how interest should be calculated.

The Constitutional Court found in favour of Vodacom, delivering a scathing judgment against the Supreme Court for presiding over a "total failure of justice".

Acting Deputy Chief Justice Mbuyiseli Madlanga, who retired on the day he delivered the apex court's unanimous ruling, said he and his fellow judges agonised over the issues presented.

Madlanga said contemplating the possibility of such total failure by a superior court was new ground within South Africa's jurisprudence.
Total failure of justice

"In this context, I am not concerned with esoteric debates about what justice is," he wrote.

"I am concerned with justice in the sense of a reasonable expectation that — within the bounds of human fallibility — courts will do what is expected of them."

Citing various local and international court rulings, Madlanga explained that justice and the court process are not about perfection, which is why the appeals process exists.

"What is important is that the flaws in the assessment must be so fundamental and pervasive as to vitiate the court's judgment," he said.

"There must have been a failure in the performance of what I will call a duty of proper consideration."

Madlanga said that one of the symptoms of a flawed assessment of the facts and issues of a case is woefully lacking reasons.

"We must not lose sight of the fact that the adequacy of reasons relates to a proper consideration of the evidence and issues and — based on that — taking a reasoned decision," he said.

"That, in no way, means that the reasons must be correct. I accept that unsatisfactory reasoning does not necessarily equal failure to discharge the duty of proper consideration."

Madlanga highlighted one area of Vodacom CEO Shameel Joosub's testimony where he said the estimates used in Makate's models needed to be carefully examined.

The Supreme Court of Appeal said that this word of caution or conclusion was expressed without saying why.

"A great deal of evidence from the parties was adduced on this aspect," said Madlanga.

"In his explanatory affidavit, the CEO substantiated his reasons for rejecting Mr Makate's models in no fewer than 27 paragraphs."

Madlanga said it was difficult to comprehend how the Supreme Court of Appeal came to the conclusion that what the CEO had said was unexplained.

"The Supreme Court of Appeal was either not aware of the CEO's explanation or disregarded it. Whatever the position, its conclusion is inexplicable," he said.

"The confusion or disregard or lack of awareness of the evidence and arguments led to the Supreme Court of Appeal not assessing and deciding on central issues and crucial evidence. It cannot do that."

Madlanga said that the ultimate outcome of the SCA's bungling was that the real appeal Vodacom had brought before the court was not decided.

"That constituted a total failure of justice in breach of the rule of law and the fair hearing right protected in section 34 of the Constitution."

18 years of legal battles

This is not the first time the Please Call Me saga was before the Constitutional Court. In 2016, the court ruled that there was a verbal contract between Vodacom and Makate and that compensation was owed.

Makate had approached the Constitutional Court after losing in the High Court and Supreme Court of Appeal.

The dispute between Makate and Vodacom dates back to 2007, when he first sent letters of demand claiming he was promised compensation for his role in Please Call Me. He launched legal action in 2008.

Seven years prior, while working as a trainee accountant at Vodacom, he pitched the idea of a method to "buzz" someone else's phone without airtime.

In a memo dated 21 November 2000, Makate wrote to a superior about his idea, calling it the "buzzing option".

According to an internal Vodacom newsletter, his idea was ultimately developed into Please Call Me, which launched on the Vodacom network in 2001 — almost three months after MTN.

Although Makate was not involved in the development or launch of the product (and compelling evidence that MTN was actually the original inventor of "Call Me"), he said he was promised compensation.

Internal Vodacom emails presented in court showed that former product development head Philip Geissler had promised Makate that he would speak to former CEO Alan Knott-Craig about a suitable reward.

Geissler had assured Makate that if Please Call Me proved successful, he would speak to then-CEO Alan Knott-Craig about "rewards" for his idea.

However, he also cautioned, albeit more diplomatically, that there likely wouldn't be an additional cash reward for doing your job.

"As for rewards. All staff are expected to assist the company to achieve its goals. That is part of normal business," Geissler wrote to Makate in an email dated 6 February 2001.

"As for you and your assistance. Once the product is launched (and assuming it's successful) I will speak to Alan. You have my word."

Unfortunately, Geissler was never called to testify before the court, something the Constitutional Court took a dim view of.

Instead, Vodacom had relied on the testimony of Knott-Craig, whom the panel of judges had found to be a poor witness.

One key issue was that Knott-Craig took credit for coming up with Please Call Me in his autobiography, Second Is Nothing.

He was unable to reconcile his claims with Vodacom crediting Makate for the idea in an internal newsletter during the court hearings.

In contrast, Makate's team had called his former manager, Lazarus Muchenje, to help corroborate that there had been a verbal contract. The court found Muchenje's testimony more believable.

The Constitutional Court ordered Vodacom and Makate's teams to negotiate reasonable compensation in good faith. However, it also had the foresight to designate a deadlock-breaker.

That deadlock breaker was the current CEO of Vodacom, Shameel Joosub. Upon reaching deadlock, Joosub used four models to determine suitable compensation and averaged the best two, offering Makate R47 million.

Makate rejected the offer, labelling it "shocking" and "an insult". He returned to court to argue for compensation of up to R126 billion, obtaining favourable rulings in the High Court and SCA.

This resulted in Vodacom appealing to the apex court, which, on 31 July 2025, remanded the case back to the Supreme Court for a re-hearing.

As the parties now exchange papers once more, there is hope the Supreme Court will this time be able to settle the Please Call Me battle once and for all.
- mybroadband

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