Constitutional Court Sets Aside SCA Ruling in ‘Please Call Me’ Case, Remits Matter Back as Makate Remains Resilient in Battle with Vodacom
Constitutional Court has set aside the Supreme Court of Appeal ruling in the ‘Please Call Me’ case, remitting the matter back to a different panel as Nkosana Makate remains resilient in his battle with Vodacom, believing the apex court could have reached a conclusive finding instead.
In a landmark judgment that prolongs one of South Africa’s longest-running legal disputes, the Constitutional Court on 31 July 2025 overturned the Supreme Court of Appeal’s decision favouring ‘Please Call Me’ inventor Nkosana Makate against telecommunications giant Vodacom. The unanimous ruling, penned by retiring Acting Deputy Chief Justice Mbuyiseli Madlanga, criticised the SCA for multiple errors, including failing to properly consider key issues and substituting orders without jurisdiction. While granting Vodacom leave to appeal, the court remitted the matter back to the SCA for rehearing before a differently constituted panel, leaving Makate’s quest for billions in compensation unresolved after nearly two decades. Makate, undeterred, expressed resilience, stating the apex court could have finalised the saga but affirmed his confidence in securing a fair outcome.
Background to the ‘Please Call Me’ Invention and Legal Saga
The story began in November 2000 when Makate, then a 24-year-old trainee accountant at Vodacom, conceived the ‘Please Call Me’ (PCM) idea – a simple yet revolutionary service allowing users with no airtime to send a free message requesting a callback. Makate shared the concept with his superior, Philip Geissler, Vodacom’s then director of product development, who promised compensation if it proved successful. Launched in March 2001, PCM became a massive hit, generating billions in revenue for Vodacom by encouraging call-backs and boosting network usage. However, Vodacom denied Makate any payout, claiming it was developed internally by Alan Knott-Craig, the CEO at the time.
Makate initiated legal action in 2008 at the High Court in Pretoria, seeking recognition and compensation. After years of back-and-forth, the Constitutional Court in April 2016 delivered a pivotal ruling: Vodacom was bound by the oral agreement with Makate, and negotiations for “reasonable compensation” must commence in good faith. If deadlocked, Vodacom’s CEO Shameel Joosub would determine the amount. Negotiations failed in December 2017, and in 2019, Joosub offered R47 million, based on a hypothetical five-year contract. Makate rejected this as “by far too conservative,” estimating his entitlement at between R28 billion and R110 billion, citing PCM’s role in Vodacom’s growth.
The High Court in February 2022 sided with Makate, setting aside Joosub’s determination and ordering a fresh one with parameters: 5% to 7.5% of PCM revenue over 18 years (March 2001 to March 2019), plus interest at an average 5% inflation rate. Vodacom appealed to the SCA, which in February 2024 dismissed the appeal, upheld the High Court’s framework, and ordered Joosub to recalculate using Makate’s models. Estimates pegged this at R20 billion minimum, potentially up to R63 billion, alarming Vodacom and its BEE arm YeboYethu, which warned of “disastrous consequences” for 80,000 black shareholders, including dividend suspensions.
Vodacom sought leave to appeal to the Constitutional Court in March 2024, arguing the SCA breached the rule of law by granting relief Makate never cross-appealed for. Brief settlement talks in March 2024 failed, and by October 2024, Makate filed arguments claiming R9.4 billion, asserting Vodacom could afford payouts under R40 billion without severe impact.
Key Findings in the Constitutional Court Judgment
The Constitutional Court heard arguments on 24 November 2024 and delivered judgment on 25 July 2025, though widely reported as handed down on Thursday, 31 July. Justice Madlanga, in his final ruling before retirement, found the SCA committed “fatal shortcomings” by not deciding core issues on merits, failing to provide adequate reasons, and disregarding material evidence. The court introduced a “duty of proper consideration” as part of the right to a fair hearing under section 34 of the Constitution, stating courts must engage substantively with arguments, resolve factual disputes, and apply law transparently.
Madlanga criticised the SCA for accepting Makate’s propositions without explanation and substituting the High Court order without a cross-appeal, breaching the rule of law. “Albeit not exclusively, a court can demonstrate that it has discharged its duty of proper consideration if it has provided adequate reasons for its judgment,” he wrote. The SCA’s judgment was deemed unsatisfactory holistically, leading to a violation of Vodacom’s fair hearing rights.
Granting leave to appeal, the court set aside the SCA’s order but remitted the matter back for rehearing by a different panel, noting remaining issues were largely factual, unsuitable for the apex court. “It seems to me the just and equitable remedy is for the appeal to be decided on its merits by the court that ought to have decided it. More importantly, in the main, what remains for determination in the appeal are factual questions that do not ordinarily fall for determination by this court,” Madlanga explained. The unanimous decision included costs against Makate.
Makate’s Reaction and Resilience Amid Setback
Makate, speaking after the ruling, expressed disappointment but unwavering resolve. “I think the ConCourt could have finalised the matter. We still had a hearing in the high court, which they could have gone to as well, and ignored the SCA completely. They could have done that,” he said in the query. In further statements, he affirmed readiness for the SCA rehearing: “We will go to the SCA, it must provide us with a judgment that will stand the test.” Outside court, he reiterated hope for a robust SCA judgment.
Makate remains confident in securing billions, specifically R9.4 billion as filed in 2024. “The CC could have finalised the matter. I mean, we still had a hearing in the high court, which they could have gone to as well and ignored the SCA completely,” he told media. He described the ruling as a setback but stressed his case’s strength: “Makate said he remains resilient and sure in his case.” His legal team views the remittal as an opportunity to reinforce arguments, with Makate optimistic the new SCA panel will award fair compensation for PCM’s estimated R205 billion revenue impact.
Vodacom’s Response and Broader Implications
Vodacom welcomed the ruling as a “major legal victory,” having argued the SCA’s order could cost up to R63 billion, threatening financial stability and shareholder dividends. In a SENS statement, the company reiterated its R47 million offer as reasonable, based on a five-year hypothetical contract, and expressed relief at the SCA rehearing. YeboYethu, intervening as amicus curiae, highlighted risks to black empowerment initiatives.
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