CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 51/24

In the matter between:


VODACOM (PTY) LIMITED Applicant

and

NKOSANA KENNETH MAKATE First Respondent

SHAMEEL JOOSUB N.O. Second Respondent



Neutral citation: Vodacom (Pty) Ltd v Makate and Another [2025] ZACC 13

Coram: Maya CJ, Madlanga ADCJ, Majiedt J, Mathopo J, Mhlantla J,
Rogers J, Seegobin AJ, Theron J and Tshiqi J


Judgment: Madlanga ADCJ (unanimous)

Heard on: 21 November 2024

Decided on: 31 July 2025




ORDER



On application for leave to appeal from the Supreme Court of Appeal (hearing an appeal
from the High Court of South Africa, Gauteng Division, Pretoria):

2
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Supreme Court of Appeal is set aside.
4. The matter is remitted to the Supreme Court of Appeal to be reheard by a
differently constituted panel of Judges of that Court.
5. Each party must pay their own wasted costs in respect of the abortive
hearing of the matter in the Supreme Court of Appeal.
6. The first respondent must pay the applicant’s costs in this Court, including
the costs of three counsel.



JUDGMENT




MADLANGA ADCJ (Maya CJ, Majiedt J, Mathopo J, Mhlantla J, Rogers J,
Seegobin AJ, Theron J and Tshiqi J concurring):


Introduction
[1] This application is a sequel to a regrettably unending dispute between
Vodacom (Pty) Limited , the applicant, and Mr Nkosana Kenneth Makate , the first
respondent. This litigation, which spans just under two decades, concerns
compensation owed by Vodacom to Mr Makate for the “Please Call Me” (PCM) idea.
The first round of litigation between Vodacom and Mr Makate culminated in this Court
declaring that Vodacom was bound by an agreement concluded by Mr Makate and
Mr Philip Geissler, the then Director of Product Development and Management at
Vodacom, and ordering, inter alia: that Vodacom and Mr Makate negotiate in good faith
to determine reasonable compensation in terms of the agreement; and that, in the event
of agreement on reasonable compensation not being reached, such compensation be

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determined by Vodacom’s Chief Executive Officer (CEO), the prese nt second
respondent, Mr Shameel Joosub.1

[2] The negotiation between Vodacom and Mr Makate commenced. At its end, the
parties were so far apart that the negotiation understandably came to naught. Mr Makate
proposed settling compensation in the sum of R20.2 billion, plus interest. This was
considerably less than the higher end of the amounts yielded by the models that
Mr Makate used in the negotiations. Vodacom offered R10 million compensation. The
deadlock then had to be broken by the CEO. The CEO made a determination in the sum
of R47 million. Mr Makate was unhappy. He took the determination on review to the
High Court of South Africa, Gauteng Division, Pretoria . The High Court found in
Mr Makate’s favour, remitting the matter to the CEO for a fresh determination within
certain specified parameters. Vodacom was aggrieved by the Hi gh Court judgment. 2
An appeal to the Supreme Court of Appeal was unsuccessful.3 Vodacom is now before
us seeking leave to appeal against the Supreme Court of Appeal judgment.

[3] The two main contentions by Vodacom are these. F irst, the majority in the
Supreme Court of Appeal4 (unless the context suggests otherwise, simply referred to as
the Supreme Court of Appeal) impermissibly strayed ont o terrain that required a
cross-appeal by Mr Makate, which there was not. Second, it disregarded the true issues
before it with the result that there was a total failure of justice. On the first issue,
Vodacom submits that a court that determines an issue that is not before it (i.e., an issue
in respect of which there ought to have been a cross -appeal, which was not brought )
acts beyond its jurisdiction and thus in breach of the rule of law 5 and the right to a fair
hearing protected in section 34 of the Constitution. On the second i ssue, it argues that

1 Makate v Vodacom (Pty) Ltd [2016] ZACC 13; 2016 (4) SA 121 (CC); 2016 (6) BCLR 709 (CC).
2 Makate v Joosub N.O. [2022] ZAGPPHC 55; [2022] 2 All SA 226 (GP) (High Court judgment).
3 Vodacom (Pty) Ltd v Makate [2024] ZASCA 14; [2024] 2 All SA 1 (SCA); 2024 (3) SA 347 (SCA)
(Supreme Court of Appeal judgment).
4 The Supreme Court of Appeal was split 3-2.
5 Section 1(c) of the Constitution provides that the Republic of South Africa is founded on values that include the
supremacy of the Constitution and the rule of law.

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the disregard of the true issues between the parties breached the rule of law and its right
to a fair hearing guaranteed in section 34.

[4] Those are the two main issues that fall to be determined by this Court. I use “in
the main” in my introduction of these two issues advisedly. The application raises many
other issues. I will pronounce on the fate of those other issues later in this judgment.

Background
[5] In order for the narrative to be self -contained, I will briefly deal with facts that
were at issue when this matter was before this Court on the first occasion. Mr Makate,
then a trainee accountant at Vodacom, came up with what Vodacom itself describes as
“a brilliant idea”. The idea was that a cell phone use r with no airtime could “buzz” a
user with airtime and the latter could then call the former. The attraction to the idea
was being able to buzz or give a user a missed call whilst the “buzzer” had no airtime.
The idea was a trigger for Vodacom to develop PCM.

[6] A dispute arose about whether Vodacom would compensate Mr Makate for his
idea. As indicated above, this Court resolved that dispute by holding that a binding
agreement for reasonable compensation had been concluded between Mr Geissler , on
behalf of Vodacom, and Mr Makate. What remained outstanding was the quantum of
compensation, which – as ordered by this Court – was initially to be determined by
Mr Makate and Vodacom, through good faith negotiation, failing which, by Vodacom’s
CEO. Vodacom and Mr Makate did not agree on compensation. The parties referred
the matter to the CEO who engaged in a thoroughgoing process. The CEO afforded the
parties an opportunity to file comprehensive written submissions. Those submissions
incorporated factual material and expert reports. That was followed by a two -day
hearing of oral submissions , after which further written submissions were filed and
further written expert evidence adduced.

further written expert evidence adduced.

[7] In his determination, the CEO took into account four models . The first was the
“2001 looking forward model”. This posited what a CEO would probably have agreed

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as compensation for PCM as at 2001 when Mr Makate made his offer. B ased on that
model, the present -day value of what Mr Makate was entitled to was R51. 5 million.
The second was the “ model of Mr Makate as an employee”. This concerned what
employees are ordinarily paid for ideas that their employers take ov er. On this model,
the present -day value of what would have been payable to Mr Makate was
R21.8 million. The third model was the “time window lock model”6 (TWL). Here the
CEO—

“took the actual TWL customers multiplied by the number of PCMs . . . multiplied by
the success rate of 27% as es tablished in th e Makate model. The result is then
multiplied by the rate per minute and the call length with 100% of the calls deemed
incremental.”7

The then present-day value on this model was R38.1 million. The last model was the
“revenue share model” , which Vodacom labels the “ backward-looking revenue share
model”. The CEO’s model look ed at the revenue to be shared with the benefit of
hindsight. The then present-day value on this model was R42.2 million.

[8] At the end of it all, the CEO took the average of present-day values yielded by
the models most favourable to Mr Makate, namely the “2001 looking forward model”
and “revenue share model looking backwards”. The average, rounded upwards, was
R47 million. That is the amount the CEO determined to be the compensation to which
Mr Makate was entitled. Dissatisfied, Mr Makate took the determination on review to

6 Before some date in 2007 when Vodacom terminated the practice, prepaid and top-up customers had to use their
recharge airtime within a limited time (the window) after which “they were locked” and would be in a state of
being without airtime (unless they recharged before they were locked) even if their airtime was not fully used up.
7 The concept of “incremental calls” is about this . Not all calls made pursuant to a PCM generate revenue for

Vodacom. Such calls are not incremental. Examples are the following. A customer has a contract in terms of
which they pay, for example, R100 for 100 minutes of talk time per month. Because of PCMs that the customer
receives, their normal 80 -minute use per month increases to 90 minutes. Because the 90 minutes is within the
100-minute monthly talk time, the PCMs do not generate additional revenue for Vodacom. Also, t here are those
instances where a customer invariably makes certain calls to a specific person, but the person sometimes sends
PCMs instead of waiting for the calls that are sure to come (e.g., where the PCM sender is indicating that they are
ready to take the regular call). In both instances, the calls will not be incremental. Calls that do generate revenue
are incremental.

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the High Court alleging that certain irregularities rendered the CEO’s determination
manifestly unreasonable, unjust and inequitable.

[9] The main areas of disagreement in the review related to the following topics:8
the duration of the period over which Mr Makate was entitled to share in the PCM
revenue; interest; procedural unfairness; the model used by the CEO to calculate
revenue; and failure to consider relevant evidence.

[10] On the duration o f the revenue sharing period, Mr Makate contended that the
CEO irregularly limited his share of revenue to five years despite the fact that the PCM
product had generated revenue for no less than 18 years and was continuing to do so.
He alleged that the agreement on sharing revenue would have spanned the entire period
during which Vodacom used the PCM product and generated revenue from it .
Effectively, if this were to have lasted in perpetuity, he would be entitled to
remuneration in perpetuity . However, he indicated that he was prepared to accept a
contract duration and revenue share of 18 years.

[11] Vodacom’s response was that the five-year revenue share period determined by
the CEO was reasonable. The period had to be viewed from the perspective of Vodacom
considering the nature and duration of the agreement as at the time of deciding whether
to conclude the agreement , namely 2001 . It was unlikely that at that time Vodacom
would have agreed to a revenue share in perpetuity or for 18 years. After all, Mr Makate
sought “reasonable remuneration”, which was not necessarily remuneration in
perpetuity: he is entitled to an amount which reasonably compensates him for his idea;
and he is not entitled to an annuity for life, continue d Vodacom’s contention. Also,
according to Vodacom, the period determined by the CEO was consistent with
Vodacom’s position in relation to untested products. And the five -year period was
generous in circumstances where Mr Makate was not rendering an ongoing service to
Vodacom.

generous in circumstances where Mr Makate was not rendering an ongoing service to
Vodacom.

8 These are as summarised by the minority in the Supreme Court of Appeal judgment above n 3 at para 57. Even
on Vodacom’s responses, I rely on the minority’s summary.

MADLANGA ADCJ
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[12] Regarding interest, Mr Makate contended that the CEO declined to award any
interest on his revenue share, as he had mistakenly assumed that Mr Makate’s counsel
had abandoned any claim for interest. Vodacom pointed out that Mr Makate’s focus
only on interest disregarded what actually happened. This, because what the CEO did,
instead, was to make provision for the time value of money. That is, compensating for
the loss of value in money over time. For that, the CEO a pplied a 5% inflation rate
worked out thus. The CEO looked at the average inflation rate from 2002. That rate
came to 5%. He then applied it on an annual basis from 2002 to 2019 in order to arrive
at a value that he considered “more than fair” for Mr Makate to preserve his purchasing
power over the period.

[13] On procedural unfairness, Mr Makate submitted that the proceedings before the
CEO were inherently unfair because Vodacom refused to disclose the revenue earned
from the PCM product. Vodacom’s counter was that there was no unfairness. Instead,
there was no direct revenue that could quantifiably be attributed to the PCM product.

[14] The next review ground was that the CEO used incorrect figures in calculating
the revenue and that he used an incorrect revenue model in calculating the compensation
due. He ought to have used Mr Makate’s fourth revenue share model, the so-called
Model 8A, which looked backwards. In the High Court, Mr Makate updated Model 8A
as Model 9A, summarised in Model 9B. Vodacom answered that, as the
deadlock-breaker, the CEO was given an unfettered discretion to determine reasonable
compensation. It disputed that the CEO had relied on incorrect figures and asserted that
Mr Makate could not second-guess the revenue model that the CEO had adopted.

[15] Lastly, on the ground that th e CEO failed to consider relevant evidence,
Mr Makate sought to demonstrate that, on the Vodacom Group’s own provision in its

Mr Makate sought to demonstrate that, on the Vodacom Group’s own provision in its
2017 financial statements for material contingent liabilit ies, it had provided
R960 million for his claim. And in the 2016 financ ial statements Vodafone Group plc
(Vodafone), Vodacom’s holding company, had provided £180 million (R3. 7 billion at

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the then applicable exchange rate) for the claim. As I understand it, the point was that,
in determining that compensation payable to Mr Makate was R47 million, the CEO
ignored Vodacom and Vodafone’s own estimates of the contingent liability reflected in
the financial statements. In its counter Vodacom stated that the estimates, made by
independent auditors, constituted disclosures based o n an unquantified existing
obligation. At that stage reliable estimates could not be made. Therefore, the thresholds
on material contingent liability were irrelevant to the determination of reasonable
compensation.

[16] In accordance with his Models 9A and 9B, the capital figure to which Mr Makate
claimed to be entitled in terms of his amended notice of motion was (I use rounded
figures) R9.74 billion or R14.61 billion, depending on whether his share of the alleged
“Total Call Revenue” generated by PCM was se t at 5% or 7.5% . On th is capital,
Mr Makate sought mora interest, alternatively interest in terms of section 2A(5) of the
Prescribed Rate of Interest Act.9 According to his Model 9B, the total claim inclusive
of mora interest w as R28.99 billion or R43.48 billion, depending on the sharing
percentage used. On the other hand, the total claim inclusive of interest in terms of
section 2A(5) w as R36.91 billion or R55.37 billion, again depending on the sharing
percentage used. These amounts were based on a contention that Mr Makate was
entitled to a share of PCM revenue derived between 2002 and 2020, the period covered
by his Models 9A and 9B. In the alternative, Mr Makate sought that compensation be
determined by the Court or that the determination be made by a new referee appointed
by the Court.

[17] The High Court reviewed and set aside the CEO’s determination. However,
instead of substituting it with its own or Mr Makate’s claimed figure , it remitted the

9 55 of 1975. Section 2A(5) provides:

9 55 of 1975. Section 2A(5) provides:
“Notwithstanding the provisions of this Act but subject to any other law or an agreement
between the parties, a court of law, or an arbitrator or an arbitration tribunal may make such
order as appears just in respect of the payment of interest on an unliquidated debt, the rate at
which interest shall accrue and the date from which interest shall run.”

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matter to the CEO for a recalculation and fresh determination. In doing so, it set certain
parameters within which this should be done. 10 Vodacom appealed to the
Supreme Court of Appeal against that remittal order, contending that there was no basis
for interfering in the CEO’s determination. At the centre of the issues raised on appeal
was the High Court’s approach on the calculations. After all, it was that approach that
informed the parameters set by the High Court in the remittal order. It is
understandable, therefore, why Vodacom’s appeal challenged the High Court’s findings

10 The High Court order read:
“In the result the following order is made:
(1) The application to strike out is dismissed with no order as to costs.
(2) The determination by the CEO is referred back to the first respondent who is obliged
to make a fresh determination with the following directives:
(a) The applicant is entitled to be paid 5% of the total voice revenue generated
from the PCM product from March 2001 to March 2021 by the second
respondent;
(b) That total voice revenue includes PCM reven ue derived from prepaid,
contract (both in bundle and out bundle) and interconnect (MTR) fees as set
out in the second respondent’s annual financial statements as well as the
information provided in annexures 16(a) -16(r) produced by the second
respondent (CL021-1 to CL021-21) and collated in annexure NM29 (CL034-
1 to CL034-2).
(3) The first respondent must determine the annual effective rate, which effective rate
should be a blend between contract effective rate and prepaid effective rate, and in
each case the respective rates are not to be less than the published ICASA effective
rate:
3.1 The first respondent must assume that the average call duration of the return
calls is 2 minutes;
3.2 For the purposes of the first respondent’s determination it must not be l ess
than the published ICASA effective rate;

than the published ICASA effective rate;
3.3 For the purposes of the first respondent’s determination it must be assumed
that the PCM count in Model 9A is correct. Model 9A is to be found on
NM30, (CL035-1 to CL035-8 and CL036-1);
3.4 The applicant is entitled to 27% of the number of PCMs sent daily as being
revenue generated by the return calls to the PCM.
(4) The applicant is also entitled to the time value of money calculated at 5% for each
successive year that the second respondent owes to the applicant and the capital amount
or annual portion thereof.
(5) That the first respondent must finalise his determination within one month of this order.
(6) Each party is to pay their own costs for the negotiations referred to by the
Constitutional Court.
(7) The costs of this application are to be paid on a party and party scale, which costs shall
include the costs of two counsel.”

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on the calculations. The substance of Vodacom’s contentions on appeal was to support
the CEO’s determination. The Supreme Court of Appeal produced a 3-2 split in favour
of Mr Makate.

[18] The Supreme Court of Appeal held that the High Court was correct in holding
that the CEO’s determination was contrary to this Court’s mandate. This led to the
conclusion that Vodacom’s appeal had to be dismissed. However, the Supreme Court
of Appeal did not end there. It went on to ho ld that the High Court’s order di d not
accord with what Mr Makate had asked for in his notice of motion, which was setting
aside the CEO’s determination and substituting it with the High Court’s own
determination, based on Models 9A and 9B . It emphasised that he had sought a
substitution, not remittal. Substitution had to be ordered as the parties had dealt
extensively with computation issues before the CEO and as there was no evidence that
Mr Makate’s computation was wrong, “save that it [did ] not take some variables into
account”.11 Consequently, the Supreme Court of Appeal held that it could find no
reason why Mr Makate’s computation should not be found to be correct.12

[19] It proceeded to make a determination. On the percentage of revenue to w hich
Mr Makate was entitled, the order stipulated it as “5%-7.5%”. That range translates to
huge differences in the amounts payable across the range. On interest, the
Supreme Court of Appeal ordered Vodacom to pay “mora interest . . . , alternatively
interest in terms of section 2A(5) of the Prescribed Rate of Interest Act ”.13 Again, the

11 Supreme Court of Appeal judgment above n 3 at para 37.
12 Id.
13 The full order reads:
“1 Save to the extent set out below, the appeal is dismissed with costs, including those of
two counsel where so employed.
2 The order of the High Court is set aside and substituted with the following:

2 The order of the High Court is set aside and substituted with the following:
‘(a) The decision of the first respondent delivered on 9 January 2019, determining
the compensation to be paid to the applicant by the second respondent , is
reviewed and set aside.
(b) The decision referred to in paragraph 1 is substituted with a decision that the
applicant is entitled to be paid 5 %-7.5% of the total revenue of the PCM
product from March 2001 to date of judgment by the second respondent ,

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difference between interest calculated o n the former and the latter base s is vast. It is
worth noting that the Supreme Court of Appeal’s order substantially adopted the content
of Mr Makate’s High Court amended notice of motion. Crucially, Mr Makate attained
such an order despite the fact that he had not cross-appealed. Of course, as will appear
below, Mr Makate argues that a cross-appeal was not necessary.

[20] Vodacom is now before us seeking leave to appeal . Before dealing with the
parties’ submissions, let me mention that there are averments and counter -averments
and arguments and counter -arguments on the impact that a huge monetary payout to
Mr Makate will have on Vodacom and its shareholders. I choose not to deal with any
of that as the approach I take does not turn on those issues. I next set out Vodacom’s
submissions.

Vodacom’s submissions
[21] Vodacom argues that our constitutional jurisdiction is engaged on a few fronts.
The Supreme Court of Appeal granted Mr Makate an appeal he never sought.
Mr Makate did not cross -appeal and claim that there was anything the matter with the
High Court order. For this proposition, Vodacom relies on F Von Steinaecker.14 The
possibility of the substituted order that the Supreme Court of Appeal granted was never
an issue before that Court. Thus the Supreme Court of Appeal lacked jurisdiction in

together with the mora interest thereon, alternat ively interest in terms of
section 2A(5) of the Prescribed Rate of Interest Act 55 of 1975 as amended,
and that the total revenue of the PCM product shall be that set out in
Model 9A, 9B & 9BB submitted to the first respondent by the applicant
(annexure NM30–NM32 to the supplementary founding affidavit).
(c) It is directed that first respondent represented by the second respondent shall
bear the costs of the negotiations referred to in the Constitutional Court
judgment, which costs shall include:

judgment, which costs shall include:
(i) drafting of the submissions;
(ii) preparation for and the hearing before the first respondent;
(iii) reservation, preparation and qualifying fees of experts involved in
the negotiations and hearing on an attorney and own client scale.
(d) The costs of this application are to be paid, jointly and severally, by the first
and second respondents, the one absolving the other.’”
14 F Von Steinaecker v C F Kneisel (1898) 19 NLR 153.

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this regard, so mething which constitutes a breach of the rule of law entrenched in
section 1(c) of the Constitution.

[22] Insofar as the Supreme Court of Appeal set aside the High Court order and
substituted its own, Vodacom contends that the Supreme Court of Appeal breached its
right to a fair hearing guaranteed in section 34 of the Constitution.

[23] Vodacom avers that there was a long list of issues that were seriously disputed
between it and Mr Makate, examples being: PCM volumes; incremental revenue; call
duration; effective call rate; duration of the revenue-share contract; and mora interest
or time value of money. Vodacom contends that, despite the fact that each side adduced
swathes of evidence on all the disputed issues and presented written and oral argument
on them, the Supreme Court of Appeal disregarded all this. Relying on Rand Refinery,15
Vodacom then argues that the Court’s disregard of these factual issues implicates its
right guaranteed under section 34 of the Constitution.

[24] Vodacom submits that the disregard or mischaracterisation of the issues and
ignoring of the true facts by the Supreme Court of Appeal constitutes a total failure of
justice and thus a breach of t he right to a fair hearing guaranteed in section 34 of the
Constitution.

[25] Vodacom also contends that, in some parts, the Supreme Court of Appeal order
is “unduly vague”. In this regard, it cites the fact that the order declared that Mr Makate
was entitled to “5%-7.5%” of PCM revenue. To awa rd Mr Makate a range from
5%-7.5% “is hopelessly vague”. And Vodacom bemoans the fact that the
Supreme Court of Appeal did this despite the fact that Mr Makate accepted the 5%
figure and this fact was common cause before that Court.


15 Rand Refinery (Pty) Ltd v Sehunane N.O. [2023] ZACC 28; (2023) 44 ILJ 2434 (CC); 2023 ( 12) BCLR 1511
(CC); [2023] 12 BLLR 1235 (CC) at para 19.

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[26] Still on vagueness, Vodacom next focuss es on the fact that the Supreme Court
of Appeal ordered it to pay mora interest or interest in terms of section 2A(5) of the
Prescribed Rate of Interest Act. Its argument then proceeds thus. The question is: how
can an order have alternative rates of interest? Which rate must apply in the end?
Vodacom points out that on one of Mr Makate’s calculation models, his capital plus
mora interest ranges from R28.98 billion to R43.48 billion, whereas the capital amount
plus the section 2A(5) interest ranges from R36.91 billion to R55.37 billion.

[27] Vodacom concludes by submitting that these two parts of the Supreme Court of
Appeal’s order “are thus so vague as to preclude an identifiable decision that is capable
of implementation or enforcement” and are, as a consequence, “in breach of the rule of
law and Vodacom’s right to a fair hearing”.

[28] Beyond jurisdiction, Vodacom submits that, to succeed, Mr Makate must satisfy
the requirements of the Bekker16 test, which – according to Vodacom – he has not. This
is the test applicable where there is a challenge to the determination of a person
appointed to fix a price or make a valuation. In Perdikis17 the test formulated in Bekker
was captured thus:

“It was held in Bekker . . . that a valuation can be rectified on equitable grounds where
the valuer does not exercise the judgement of a reasonable [person], that is, [their]
judgement is exercised unreasonably, irregularly or wrongly so as to lead to a patently
inequitable result.”18

[29] The effect of this test , argues Vodacom, is to ask whether the CEO’s
determination accords with that of a reasonable person. If it does, that is the end of the
complaint. If it does not, the next question is whether the CEO’s determinati on is
patently inequitable.

16 Bekker v RSA Factors 1983 (4) SA 568 (T) at 573E-F.
17 Perdikis v Jamieson 2002 (6) SA 356 (W).
18 Id at 364H-I.

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[30] In seeking to demonstrate that the CEO exercised the judgement of a reasonable
person, Vodacom then deals with the evidence extensively. In respect of each piece of
crucial evidence in this regard, Vodacom seeks to demonstrate that the Supreme Court
of Appeal was guilty of one or more of the following: it ignored the evidence; it was
unaware of the evidence; it misunderstood the evidence; and it profoundly mistook the
substance of the nature of the evidentiary dispute between the parties.

Mr Makate’s submissions
[31] Mr Makate’s written submissions were one day late. He seeks condonation. The
explanation for the delay is adequate. And there is no prejudice to Vodacom.
Unsurprisingly, Vodacom does not oppose. It is in the interests of justice to grant
condonation, and it is granted.

[32] Mr Makate takes issue with the argument that this Court’s jurisdiction is
engaged. According to him, Vodacom does not raise any constitutional issues or
arguable points of law of general public importance. He submits that the arguments on
jurisdiction fail to raise legal issues and are instead veiled factual disputes.

[33] He contends that the Supreme Court of Appeal did not exceed its jurisdiction, as
the issue of substitution was pleaded before the High Court and was relevant to the order
made by t he High Court and to the proceedings before the Supreme Court of Appeal.
The argument continues that Vodacom’s complaint was that, in effect, the High Court
order was a substitution. As a result, the appropriateness of that substitution was fully
ventilated by the parties before the Supreme Court of Appeal. It is incorrect, therefore,
for Vodacom to claim that it was not called upon to answer a case of possible
substitution, concludes the argument . Mr Makate then called in aid this Court’s
judgment in Saratoga Avenue19 to argue that an appellate court is empowered to make

19 Occupiers of Saratoga Avenue v City of Johannesburg Metropolitan Municipality [2012] ZACC 9; 2012 (9)
BCLR 951 (CC) at para 7.

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the order that the court below should have made, and the latter order becomes the order
of the court below. He also submitted that, because the Supreme Court of Appeal
concluded that the High Court had misapplied the second leg of the Bekker test, it (the
Supreme Court of Appeal) was at liberty to consider the question of remedy and costs
afresh.

[34] Mr Makate takes issue with Vodacom’s argument that the portions of the
Supreme Court of Appeal order relating to a range of PCM revenue (5%-7.5%) and the
interest alternatives are vague. He submits that, in any event, this vagueness question
is moot as he has abandoned the higher figures that feature in the range or alternatives,
thus confining himself to a revenue-share of 5% (rather than anything beyond that point
up to 7.5%) and mora interest (rather than section 2A(5) interest).

[35] Finally, Mr Makate disputes the argument that the Supreme Court of Appeal
disregarded issues and evidence. He submits that the Supreme Court of Appeal ’s
decision was entirely consistent with the evidence presented. Mr Makate submits that
Vodacom’s list of disputed facts wa s adequately addressed by the Supreme Court of
Appeal. Although that Court’s judgment “is concise, in parts”, sight should not be lost
of the fact that the judgment was written in a context where several previous judgments
had already made factual and leg al findings. He avers that he had adduced evidence
which was largely undisputed by Vodacom. According to Mr Makate, this ground of
appeal is nothing but a divergence on the evaluation of the facts. On this Court’s
authority, that is not a matter that mu st be entertained by this Court. Moreover, the
complaints about the factual and legal findings do not infringe the fair hearing right
protected by section 34 of the Constitution . That right has been complied with in this
case. Vodacom is invoking section 34 purely because it disagrees with the outcome of

case. Vodacom is invoking section 34 purely because it disagrees with the outcome of
the Supreme Court of Appeal decision and aligns more closely with the minority view,
which it cannot do.

[36] Mr Makate then proceeds to demonstrate extensively that Vodacom’s “factual
appeal” is, in any event, without merit.

MADLANGA ADCJ
16

[37] I turn to deal with the issues that arise from the submissions. First, jurisdiction.

Jurisdiction
[38] Vodacom pleads that the Supreme Court of Appeal judgment is characterised by
fundamental flaws that point to a Court that totally fai led to appreciate the facts and
issues before it with the result that there was a failure of justice. As a result, Vodacom
was denied a fair hearing guaranteed in section 34 of the Constitution. Vodacom argues
that, by granting Mr Makate an appeal he nev er sought, the Supreme Court of Appeal
breached the rule of law entrenched in section 1(c) of the Constitution. This also
infringed Vodacom’s section 34 right to a fair hearing, continues the argument. This,
because a decision was taken on a case Vodacom was never required to meet. Lastly,
Vodacom submits that the parts of the order concerning the range on the PCM revenue
share and the interest payable are so vague as to be incapable of enforcement and, as a
consequence, breach the rule of law and the ri ght to a fair hearing. Obviously, this
Court’s constitutional jurisdiction is engaged on all the pleaded bases.20 Whether they
will be sustained on the merits is another question.

Leave to appeal
[39] As will appear below, there are prospects of success on appeal. Also, Vodacom’s
application raises important constitutional issues , in particular the question whether it
is open to this Court to set aside the decision of a court on the basis of that court’s failure
to appreciate the facts and issues before it. It is thus in the interests of justice that leave
to appeal be granted.

[40] I proceed to deal with what I consider to be the central question in this
appeal – the question of failure of justice.


20 Jurisdiction is determined by the pleadings. See Gcaba v Minister for Safety and Security [2009] ZACC 26;

2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC) at para 75 where this Court said that “[j]urisdiction is determined
on the basis of the pleadings . . . and not the substantive merits of the case”.

MADLANGA ADCJ
17
Failure of justice
[41] As indicated more than once before, this ground of appeal concerns Vodacom’s
contention that the Supreme Court of Appeal disregarded facts and issues. The two,
i.e., the facts and issues, are closely bound up. Vodacom highlights the f act that the
Supreme Court of Appeal “seems to have been unaware [of], or disregarded, a long list
of serious disputes about Mr Makate’s calculations and a vast body of evidence on those
disputes”. This tends to give the impression that Vodacom’s complaint is about the
Supreme Court of Appeal’s assessment of facts. Viewed in that light, the matter appears
– at first blush – to present some difficulties.

[42] How flawed must an assessment be for it to cross the line to constitute a failure
of justice and, thus, a violation of the rule of law and the right to a fair hearing
guaranteed in section 34 of the Constitution? Put differently, what is the threshold
above which our constitutional jurisdiction is engaged? In what circumstances does the
assessment fall short of that threshold so as to be hit by the Boesak21 or Mbatha22
principle to the effect that dissatisfaction with a court’s assessment of facts does not
engage our jurisdiction? On the face of it, Vodacom’s argument seems to take us to a
slippery slope that will result in the reach of the Boesak and Mbatha principle being
difficult, if not impossible, to implement. Will that principle not be unacceptably
attenuated?

[43] Whatever the attendant difficulties, is the real question n ot whether there has
been a total failure of justice? In this context, I am not concerned with esoteric debates
about what justic e is. 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. Justice and, indeed, the court process are not about perfection; courts

21 S v Boesak [2000] ZACC 25; 2001 (1) BCLR 36 (CC); 2001 (1) SA 912 (CC).
22 Mbatha v University of Zululand [2013] ZACC 43; 2014 (2) BCLR 123 (CC); 2014 (4) BLL R 307 (CC);
(2014) 35 ILJ 349 (CC).

MADLANGA ADCJ
18
are not to be held “to some abstract standard of perfection”.23 It is unsurprising that in
Bernert this Court held that “[j] udicial officers are not superhuman beings who do not
make mistakes. This is why there is an appellate process to correct mi staken findings
on law or facts”.24 And in Basson it had this to say, “[I]t is important to bear in mind
that it is inevitable that, from time to time, a Judge may make an error of law ”.25 If
– with that in mind – there has been a failure of justice, I find it difficult to understand
why that does not constitute a denial of the right to a fair hearing protected by section 34
of the Constitution. It matters not that the failure of justice may manifest itself through
an improper factual assessment. What is important is that the flaws in the assessment
must be so fundamental and pervasive as to vitiate the court’s judgment. There must
have been a failure in the performance of what I will call a duty of proper consideration.

[44] Once vitiated by flaws of the nature I have described, a court’s decision is a
non-decision. Without a decision, a court will have failed in its very raison d’être.
Litigants go to court to have their legal disputes decided there. And the need for a court
to decide the dispute is an important component of the fair hearing right. That much is
plain from the verb “decided” in section 34 of the Constitution. A de cision that is
vitiated by malperformance of the duty of proper consideration is not a decision as
envisaged in section 34. Social Justice Coalition is useful in this regard:

“The right to access to court is more than simply the right to approach a court and
initiate a case in support of a just iciable dispute. The object of going to court is to
secure a decision on a dispute and the language of section 34 [of the Constitution]
expressly extends to the right to have a dispute decided. Similarly, the process by

expressly extends to the right to have a dispute decided. Similarly, the process by
which a decision is reached is also covered by t he right in its reference to a ‘fair
hearing’. Put differently, section 34 is a right that guarantees access to court to have a
dispute decided in a fair public hearing.”26 (Emphasis added.)


23 R v Sheppard 2002 SCC 26; [2002] 1 SCR 869 at para 55.
24 Bernert v Absa Bank Ltd [2010] ZACC 28; 2011 (3) SA 92 (CC); 2011 (4) BCLR 329 (CC) at para 102.
25 S v Basson [2005] ZACC 10; 2005 (12) BCLR 1192 (CC); 2007 (1) SACR 566 (CC); 2007 (3) SA 582 (CC) at
para 69.
26 Social Justice Coalition v Minister of Police [2022] ZACC 27; 2022 (10) BCLR 1267 (CC) at para 51.

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19
[45] The duty of proper consideration is an integral component of the fair hearing
right. The founding constitutional value of the rule of law and section 34 of the Bill of
Rights require, in my view, that a court should have regard to all material evidence and
all material submissions bearing on the issues it must decide. And the court must bring
its reasoning to bear on those material issues and reach a conclusion on them. The
evaluation of the evidence and reasoning may – as I say – be erroneous, but there cannot
be a fair hearing in compliance with the rule of law and section 34 if proper
consideration of the matter before the court has not occurred.

[46] The close bond between the fair hearing right and the rule of law was highlighted
by this Court in De Beer N.O. where it was held:

“This section 34 fair hearing right affirms the rule of law, which is a founding value of
our Constitution. The right to a fair hearing before a court lies a t the heart of the rule
of law. A fair hearing before a court as a prerequisite to an order being made against
anyone is fundamental to a just and credible legal order. Courts in our country are
obliged to ensure that the proceedings before them are always fair.”27

[47] The court speaks publicly through its judgment. It is thus in the judgment that
one expects to find evidence that the court discharged the duty of proper consideration
the way it should . An indicative factor – albeit not exclusive – of the performance of
the duty of proper consideration is providing adequate reasons for a judgment (the duty
to provide reasons) .28 Woefully lacking reasons are symptomatic of a flawed
assessment of facts and issues. For present purposes, flawed in the sense that amounts
to a failure of justice. 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

relates to a proper consideration of the evidence and issues and – based on that – taking
a reasoned decision. That, in no way, means that the reasons must be correct. I accept

27 De Beer N.O. v North -Central Local Council and South -Central Local Council [2001] ZACC 9; 2001 (11)
BCLR 1109 (CC); 2002 (1) SA 429 (CC) at para 11.
28 There are exceptions to the duty to provide reasons, a ready example being that apex courts do not have to give
reasons for refusing leave to appeal.

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20
that unsatisfactory reasoning does not necessarily equal failure to discharge the duty of
proper consideration.

[48] In Mphahlele this Court said the following about the duty to provide reasons,
which is closely connected to the duty of proper consideration:29

“The rule of law undoubtedly requires Judges not to act arbitrarily and to be
accountable. The manner in which they ordinarily account for their decisions is by
furnishing reasons. This serves a number of purposes. It explains to the parties, and
to the public at large which has an interest in courts being open and transparent, why a
case is decided as it is. It is a discipline which curbs arbitrary judicial decisions. Then,
too, it is essential for the appeal process, enabling the losing party to make an informed
decision as to whether or not to appeal or, where necessary, seek leave to appeal. It
assists the appeal Court to decide whether or not the order of the lower court is correct.
And finally, it provides guidance to the public in respect of similar matters. It may well
be, too, that where a decision is subject to appeal it would be a violation of the
constitutional right of access to courts if reasons for such a decision were to be withheld
by a judicial officer.”30

[49] Although the duty of proper consideration and the duty to give adequate reasons
are closely connected, they are conceptually different. Notionally, a court could
discharge its duty of proper consideration and yet fail in its duty to give adequate
reasons. In practice, however, attention almost always falls on the alleged breach of the
duty to give adequate reasons. This is because litigants and the public do not have
insight into the court’s private processes of evaluation and reasoning.

[50] Is there direct jurisprudential support for the approach that says malperformance
of the duty of proper consideration in the court’s decision -making breaches the fair

29 I say the two duties are closely connected because it is t hrough the articulated reasons that we can actually see
that there was compliance with the duty of proper consideration.
30 Mphahlele v First National Bank of South Africa Ltd [1999] ZACC 1; 1999 (2) SA 667 (CC); 1999 (3) BCLR
253 (CC) at para 12.

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21
hearing right? Social Justice Coalition, De Beer and Mphahlele – to which I have just
referred – are not as direct.

[51] I think the best starting point is a case that – as is the case now before us – was
concerned with the right to a fair hearing. For that reason, the case of Zayidov31 is
instructive. At the heart of that case was Article 6 (1) of the European Convention on
Human Rights. Article 6(1) of the Convention provides that “[i]n the determination of
his civil rights and obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law”. The European Court of Human Rights (ECHR)
held:

“[I]n view of the principle that the [European Convention on Human Rights] is intended
to guarantee not rights that are theoretical or illusory but rights that are practical and
effective, the right to a fair trial cannot be seen as effective unless the requests and
observations of the parties are truly ‘heard’, that is to say, properly examined by the
tribunal. Judgments of courts and tribunals should adequately st ate the reasons on
which they are based. Without requiring a detailed answer to every argument advanced
by the complainant, this obligation to give reasons presupposes that parties to judicial
proceedings can expect to receive a specific and explicit reply to the arguments which
are decisive for the outcome of those proceedings.”32

[52] From this, I want to underscore the statement that the right to a fair hearing is
effective if the “requests and observations of parties are truly ‘heard’, that is to say
properly examined by the tribunal ”.33 A statement that is consonant with the duty of
proper consideration. This statement ties in with Vodacom’s complaint that the
Supreme Court of Appeal did not truly hear or properly examine the facts and issues
before it.

before it.

31 Zayidov v Azerbaijan (No.2), no 5386/10, ECHR 2022.
32 Zayidov above n 31 at para 91.
33 Id (emphasis added).

MADLANGA ADCJ
22

[53] Citing Van de Hurk ,34 the Court of Appeal of England and Wales (EWCA) in
English said that—

“the [ECHR] . . . observed that Article 6(1) placed the ‘tribunal’ under a duty to conduct
a proper examination of the submissions, arguments and evidence adduced by the
parties. The [ECHR] will hold that Article 6(1) has been violated if a judgment leaves
it unclear whether the court in question has addressed a contention advanced by a party
that is fundamental to the resolution of the litigation.”35

[54] Reasons given for a court’s decision help demonstrate that there was or wasn’t
proper performance of the duty of proper con sideration. If the facts are simple and
straightforward, not much may be required by way of reasons to support the conclusion
reached. But the reasons must still be enough to demonstrate sufficiently that there was
compliance with the duty. As the matte r gets more complex with the need to canvass
more issues, more will be required of the judge adequately to set out their assessment
of the evidence and issues and to explain how their conclusion is reached. In Flannery
the EWCA held:

“[W]here the dispute involves something in the nature of an intellectual exchange, with
reasons and analysis advanced on either side, the judge must enter into the issues
canvassed before him and explain why he prefers one case over the other. This is likely
to apply particularly in litigation where as here there is disputed expert evidence, but it
is not necessarily limited to such cases.”36

[55] Just as a footnote for now, the matter before us is not only fact -laden, but also
characterised by complex, hotly contested expert evidence. A question that arises then
is whether in this matter the Supreme Court of Appeal grappled with the complex and

34 Van de Hurk v The Netherlands, no 16034/90, ECHR 1994 at para 59.
35 English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605 at para 9.

35 English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605 at para 9.
36 Flannery and Anor v Halifax Estate Agencies Ltd [1999] EWCA Civ 811, quoted in English id at para 6.

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23
hotly contested issues in the manner laid down in Flannery. More on that later.
Similarly, as in Flannery, the ECHR held in Ruiz Torija:

“The Court reiterates that Article 6(1) . . . obliges the courts to give reasons for their
judgments, but cannot be understood as requiring a detailed answer to every argument.
. . . The extent to which this duty to give reasons applies may vary according to the
nature of the decision. It is moreover necessary to take into account, inter alia, the
diversity of the submissions that a litigant may bring before the courts and the
differences existing in the Contracting States with regard to statutory provisions,
customary rules, legal opinion and the presentation and drafting of judgments.”37

[56] It is worth noting yet again that this obligation is articulated in connection with
the right to a fair hearing protected, of course, in Article 6(1). Whether a court has
fulfilled the obligation to give reasons depends on the facts and circumstances of each
case.38 While that is so—

“the reasons should deal with the substantial points which have be en raised; include
findings on material questions of fact; refer to the evidence or other material upon
which those findings are based; and provide an intelligible explanation of the process
of reasoning that has led the judge from the evidence to the find ings and from the
findings to the ultimate conclusion.”39

[57] Of critical importance is that “there is no duty on a judge in giving . . . reasons
to deal with every argument presented by counsel in support of [their] case”.40 I say of
“critical importance” bec ause some litigants may find this statement of the law
attractive for nitpickingly arguing that a court’s judgment failed to deal with this or that
point and that, therefore, there was a breach of the right to a fair hearing. Let them be
warned that they will not succeed. That is not what this statement of the law is about.

37 Ruiz Torija v Spain, no 18390/91, ECHR 1994 at para 29. See also Garcia Ruiz v Spain, no 30544/96, ECHR
1999 at para 26.
38 Ruiz Torija id at para 29.
39 Hunter v Transport Accident Commission [2005] VSCA 1 at para 21.
40 English above n 35 at para 17.

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24
It is about the substance of a judgment viewed holistically. So viewed, does the
judgment tell a reasonable, if not discerning, reader that there was compliance with the
duty of proper consideration? In that regard, it is enough if the judgment identifies the
issues that were vital to the determination of the matter and then shows how they were
determined. One or two issues may not necessarily be critical for that holistic look at
the substance of the judgment.

[58] In the context of the need for a judgment to explain its reasoning for purposes of
appeal, the EWCA held in English:

“[I]f the appellate process is to work satisfactorily, the judgment must enable the
appellate court to understand why the Judge reached his decision. This does not mean
that every factor which weighed with the Judge in his appraisal of the evidence has to
be identified and explained. But the issues the resolution of which were vital to the
Judge’s conclusion should be identified and the manner in which he resolved them
explained. It is not possible to provide a template for this process. It need not involve
a lengthy judgment. It does require the Judge to identify and record those matters
which were critical to his decision.”41

[59] The fact that there are defects in a judgment does not necessarily mean that there
was non-compliance with the duty of proper consideration.42

[60] I am alive to the fact that, unlike the ECHR cases on the fair hearing right, 43 the
judgments from other countries deal with the duties to provide reasons and give proper
consideration in contexts that are unrelated to the fair hearing right. That
notwithstanding, I find the cases quite useful.


41 English above n 35 at para 19.
42 Compare Crinion v IG Markets Ltd [2013] EWCA Civ 587 at para 17 where the Court, commenting on what it
described as “seriously defective” judgments that were the subjects of appeal in English, held that – in respect of

those judgments – the courts concerned were still found to have performed their judicial function properly.
43 Zayidov above n 31 and Ruiz Torija above n 37.

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25
[61] To sum up, a court will have failed in its constitutional duties to give the case
proper consideration and to give reason s for its decision if the court’s judgment does
not contain adequate reasons evidencing such proper consideration.

[62] Whether a court’s reasons are adequate will depend on the nature of the case, the
issues and the ambit o f the evidence and submissions. The test is not perfection but
adequacy. Adequate reasons do not necessarily have to be lengthy; the focus is on the
essential import or gist o f the matters to be addressed. The Supreme Court of Canada
had this to say:

“It is now plain from Canadian jurisp rudence that a trial judge is not required to give
extensive reasons for a decision, but is bound to indicate what he or she understands
the nature of the case to be so that the parties are aware that the case they argued was
the one decided.”44

[63] The adequacy of reasons is not concerned with whether the reasons are sound or
correct but whether they sufficiently explain how the court reached its ultimate
conclusions. The reasons must be “responsive to the case’s live issues and the parties’
key arguments”.45 The more complex and extensive the evidence and arguments, the
more extensive will the reasons normally need to be in order to meet the test of
adequacy. The reasons must be such as to enable the losing party to see that the court
has decided the ca se that was argued and to understand why that party lost. Reasons
must also be such as to enable an appellate court to follow the court’s reasoning with a
view to assessing whether it was right or wrong ; reasons must disclose the “path of
reasoning”. The Victorian Supreme Court of Appeal (Australia) held that “the mere
recitation of evidence followed by a statement of findings, without any commentary as
to why the evidence is said to lead to the findings, is insufficient to disclose a path of
reasoning”.46

reasoning”.46

44 R v Deschamplain 2004 SCC 76; [2004] 3 SCR 601 at para 34.
45 R v Walker 2008 SCC 34; [2008] 2 SCR 245 at para 20.
46 Transport Accident Commission v Kamel [2011] VSCA 110 at para 73.

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[64] In general, adequate reasons must at least deal with each of the main issues in
the case by: (a) identifying, in respect of each such issue, the essential import of the
evidence on each side; (b) explaining how and why the court has resolved any material
factual disputes in a particular way; (c) identifying, where applicable, the essential
import of competing submissions on the law applicable to the facts; (d) explaining how
and why the court has resolved any material disputes on the law in a particular way; and
(e) explaining how and with what result the court ha s applied the law to the facts. The
judgment must also explain how and why, pursuant to the resolution of the material
issues, the court reached its conclusion on the disposition o f the case and the orders
made. In general, the more peripheral the issue, evidence or argument, the less likely it
is that a court’s failure to address it fully or at all will justify a conclusion that its reasons
for judgment are inadequate.

[65] The principles enunciated in this judgment are not an open sesame for litigants
to subject adverse judgments to nitpicking analysis with a view to trying to show the
inadequacy of reasons.

[66] In sum, flaws in the assessment during the adjudicative process that are so
fundamental and pervasive as to vitiate the court’s judgment constitute a failure of
justice and, thus, a breach of the rule of law and the fair hearing right guaranteed in
section 34 of the Constitution.

[67] Now the central question: has the Supreme Court of Appeal ju dgment breached
the rule of law and fair hearing right?

[68] Unfortunately, I cannot but say that the judgment is thinly reasoned. At times it
is characterised by confusing reasoning. At other times it is characterised by statements
that evince a disregard for or lack of awareness of the facts and issues. Some examples
of the confusing reasoning are these. The judgment says that Vodacom was not happy

of the confusing reasoning are these. The judgment says that Vodacom was not happy
with the fact that in its 2016 judgment this Court “finally dealt with the matter on the

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27
5% of ‘revenue generated’ basis”.47 This Court nev er determined a percentage.
Mr Makate pushed for a 15% revenue share. This Court declined to award that. Instead,
it held that reasonable compensation had to be arrived at through negotiation between
Vodacom and Mr Makate, failing which it had to be determined by the CEO.

[69] The Supreme Court of Appeal went on to say that “when the CEO considered
the computation, he instinctively or by design . . . fell back to Vodacom’s original stance
of sharing on a 5% profit basis, contrary to the operative order” (i.e., this Court’s 2016
order).48 The 5% revenue share was, in fact, agreed by the parties ; that is common
cause. It is unsurprising that the CEO applied it. It passes more than strange that the
Supreme Court of Appeal referred to the 5% as this Court’s stipulation and, in the same
breath, as Vodacom’s “original stance”. But the confusion relates to the source: was
the source this Court’s order or Vodacom’s original stance? More strange is that later
the Supreme Court of Appeal does recognise that the parties had agreed on the 5% share
of revenue.49

[70] From both the majority 50 and minority 51 judgments it is plain that there was
argument on the need (or otherwise) to apply the Plascon-Evans rule.52 The majority
was totally confused as to the issue or issues to which the application of the rule related.
It held that the applicability of the rule did not arise at all in the appeal because the
parties were agreed on the issue in respect of which the rule was raised. That issu e,
according to the majority, was the percentage on which the revenue share was to be
pegged. That was wrong. The Plascon-Evans rule was raised in totally different

47 Supreme Court of Appeal judgment above n 3 at para 26.
48 Id.
49 Id at para 35.
50 Id at para 21.
51 Id at paras 110-12, 125, 165 and 167.

48 Id.
49 Id at para 35.
50 Id at para 21.
51 Id at paras 110-12, 125, 165 and 167.
52 On the rule, see Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; [1984] 2 All SA
366 (A); 1984 (3) SA 623 (A).

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28
contexts. That much is clear from the minority’s engagement with the subject. 53
Indeed, it would not have made sense for Vodacom to invoke Plascon-Evans in the
context of the agreed percentage at which revenue was to be shared . As a result of its
confusion on the applicability of the Plascon-Evans rule, the majority failed altogether
to addr ess and decide important questions to which the applicability of the rule
related.54 That constituted a breach of the duty of proper consideration. I say the
questions were important because the theme around them was the quantification of the
compensation due to Mr Makate. A central issue, indeed. The need for addressing and
deciding these questions is made plain by the minority judgment.55

[71] Yet another instance of confusion is a statement by the Supreme Court of Appeal
that Vodacom’s counsel conceded that the CEO’s determination was not reasonable. 56
One need not have been at the Supreme Court of Appeal to realise that such a concession
would have been senseless. In context, that was a key quest ion in the contest at the
Supreme Court of Appeal: was the CEO’s determination reasonable? The parties
adopted opposite sides on this question, with Vodacom defending the determination and
Mr Makate challenging it.

[72] The matters of confusion on the part of the Supreme Court of Appeal are not
mundane. They are symptomatic of a Court that did not appreciate the facts and issues
it had to determine. That goes to the important question whether the Supreme Court of
Appeal considered and decided all issues that were germane to the dispute before it , a
matter that is fundamental to the duty of proper consideration.

[73] Moving on, w hat was crucial to the Supreme Court of Appeal’s determination
against Vodacom was the question whether the R47 million awarded by the CE O was

53 Supreme Court of Appeal judgment above n 3 at paras 110-12, 125, 165 and 167.

53 Supreme Court of Appeal judgment above n 3 at paras 110-12, 125, 165 and 167.
54 As authority relied on above shows, it is a breach of the duty of proper consideration not to consider issues that
are fundamental to the determination of a matter.
55 Supreme Court of Appeal judgment above n 3 at paras 110-12, 125, 165 and 167.
56 Id at para 22.

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29
inequitable. This question was concerned with the second leg of the Bekker test.57 The
Supreme Court of Appeal obviously asked this question because it was key to
Vodacom’s appeal. Vodacom was supporting the CEO ’s determination in the sum of
R47 million. It was thus arguing that the amount was equitable. An answer that said
the amount was inequitable meant that Vodacom’s appeal had to fail. That is how
crucial the question was. Crucial though the question was to the determination of the
appeal, all that the Supreme Court of Appeal did was to set out the parties’ arguments
in this regard without pronouncing on them.58 Strangely, therefore, despite saying that
the High Court did not undertake the second leg of the Bekker test, the Supreme Court
of Appeal did not do so either. It was not enough merely to highlight the parties’
submissions. A shortcoming of this nature on so crucial an issue constitutes a breach
of the duty of proper consideration.59

[74] The Supreme Court of Appeal is also guilty of failing to assess evidence or being
unaware of evidence that it ought to have assessed . First, in paragraphs 6.1-6.8 of his
determination, the CEO dealt with evidence on “PCM revenue in the context of
Vodacom’s voice revenue”. He dealt with the evidence extensively. As part of this, he
referred to calculations of voice revenue in on e of Mr Makate’s models and said those
calculations or estimates “need to be carefully examined”. The Supreme Court of
Appeal said that this word of caution or conclusio n was expressed “without saying
why”.60 The truth is tha t in the same sentence in which this quote appears, the CEO
continued and said that this is so “because if [the estimates] are inconsistent with the
publicly available financial data, the model would be discredited”. The CEO did not

57 To recapitulate, the Bekker test, as paraphrased in Perdikis above n 17 at para 7, is to this effect:

“It was held in Bekker . . . that a valuation can be rectified on equitable grounds where the valuer
does not exercise the judgement of a reasonable [person] that is, [their] judgement is exercised
unreasonably, irregularly or wrongly so as to lead to a patently inequitable result.”
58 Supreme Court of Appeal judgment above n 3 at paras 23-4.
59 Compare English above n 35 at para 6 with reference to Flannery above n 36 at 381 where it was held:
“But where the dispute involves something in the nature of an intellectual exchange, with
reasons and analysis advanced on either side, the judge must enter into the issues canvassed
before him and explain why he prefers one case over the other.”
60 Supreme Court of Appeal judgment above n 3 at para 18.

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30
end there. He proceeded to deal with the subject and to explain himself fairly
extensively in paragraphs 6.4-6.14.

[75] He concluded that – on Mr Makate’s calculations – PCM revenue made up more
than 80% of Vodacom’s total mo bile voice revenue, and in five of those years, more
than 90%. In paragraph 6.5 the CEO said that Mr Makate’s figures thus suggested that
an overwhelming percentage of Vodacom’s voice revenue was generated as a direct
result of PCM. This, according to the CEO, ignored many other variables which went
into generating revenue for a telecommunication operator, namely: investment into the
network; other products and services offered by Vodacom; growth in customer
numbers; and growth in spend by existing custom ers. He concluded that the numbers
in the model used by Mr Makate were unrealistic and on this ground alone no reliance
could be placed on the model. In paragraphs 6.6 -6.14 he proceeded to do an in-depth
analysis of Mr Makate’s model, identifying where , in his view , it had gone seriously
wrong.

[76] Mr Makate contested Vodacom’s voice revenue figures that the CEO used in the
analysis set out above , and a great deal of evidence from the parties was adduced on
this aspect. In his explanatory affidavit the CEO substantiated his reasons for rejecting
Mr Makate’s models in no fewer than 27 paragraphs.

[77] With all this in mind, it is 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.

[78] Immediately after this incorrect conclusion, the Supreme Court of Appeal gave
three examples of errors in the determination which, according to Mr Makate’s counsel,
“the CEO could not refute”. One of these was the supposed “arbitrary 70% reduction

“the CEO could not refute”. One of these was the supposed “arbitrary 70% reduction
that the CEO introduced”. By way of background, in argument before the CEO the
parties were eventually in agreement that a return call made to a PCM sender within

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31
one hour of sending the PCM should be treated as causally prompted by the PCM and
that 27% of all PCMs fell within this parameter. Mr Makate’s complaint was that the
CEO had arbitrarily reduced the 27% by a further 70%. The result – continued the
complaint – was that only 8.1% (30% of 27%) of PCM s generated revenue in which
Mr Makate was entitled to share.

[79] The Supreme Court of Appeal dealt with this criticism in four sentences, the last
of which reads: “The CEO pro vides no answer for this in his reason s for the
determination”. It is unclear whether – in this quoted sentence – the Supreme Court of
Appeal was still summarising Mr Makate’s criticism or whether it was expressing its
own conclusion. The Supreme Court of Appeal did not return to the subject later in its
judgment. One is forced to conclude that it accepted the criticism without further
reasoning, and agreed that the CEO had given no reasons for the reduction.

[80] Once again, the Supreme Court of Appeal seem s to have been unaware of what
the CEO had said on the 70% reduction, and – as result – it failed to deal with any of
the evidence adduced by the parties on the subject of incremental revenue. In his
determination, the CEO said that the parties were in agreement that the revenue in which
Mr Makate was entitled to share was confined to incremental revenue generated by
PCM; in other words, as the CEO said, “only that revenue which but for the PCM,
would not have been generated”. The CEO proceeded to give ex amples to illustrate
why not all of the 27% return calls would generate incremental revenue for Vodacom.61

[81] Addressing the revenue share model, the CEO emphasised that the relevant
responding calls were those which were incremental in nature, and commented: “There
can never be any data which can tell whether a responding call would have been made
anyway and I can only rely on my best estimate made on the strength of my insights

anyway and I can only rely on my best estimate made on the strength of my insights
and impressions over the years ”. On this basis, he assumed that 30% of the causa lly

61 I have explained the concept of incremental calls above at n 7.

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relevant return calls would have been incremental, “although this is very generous”
(i.e., in Mr Makate’s favour).

[82] The CEO’s views did not go uncontested. Post the determination and during the
litigation, Mr Makate filed the affidavit of Professor Ha rvey Wainer, an accountancy
expert. The purpose of the affidavit was to attack the CEO’s view that return calls made
by certain contract customers did not generate incremental revenue. The CEO
responded to Professor Wainer’s views in a supplementary explanatory affidavit. There
is nothing in the Supreme Court of Appeal judgment to show that it was aware of or
gave consideration to any of this evidence. The judgment does not disclose a “path of
reasoning” that explains why, in determining a 30% allowance on the 27% return calls,
the CEO had (in the language of the Bekker test) exercised his judgement
“unreasonably, irregularly or wrongly” so as to lead to a “patently inequitable result”.
It must be emphasised that, even if Mr Makate’s Model 9A were preferred to the CEO’s
revenue share model, the need for a reduction in order to limit the revenue to
incremental revenue would still have to be considered by the Supreme Court of Appeal,
even if it was thereafter rejected on a reasoned basis.

[83] I continue with other examples of t he Supreme Court of Appeal disregarding
evidence on fundamental issues. I say disregarding when, in fact, it may well not even
have been aware of the evidence. The Supreme Court of Appeal said that it could find
no objection by Vodacom to Mr Makate’s models on compensation similar to that of a
third-party service provider .62 In similar vein, the Supreme Court of Appeal said that
“absent any evidence that Mr Makate’s computation is wrong . . . I can find no reason
why Mr Makate’s computation should not be accepted as correct”.63 This is astounding.

[84] First, Mr Makate’s models, which the Supreme Court of Appeal says were not

[84] First, Mr Makate’s models, which the Supreme Court of Appeal says were not
objected to by Vodacom, concerned the hotly contested issue of the computation of

62 Supreme Court of Appeal judgment above n 3 at para 34.
63 Id at para 37 (emphasis added).

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compensation. Why would Vodacom ha ve appealed at all if it was not contesting
Mr Makate’s models? Unsurprisingly, Vodacom submits that “ [t]he entire debate in
[the Supreme Court of Appeal] turned on the question whether the models presented by
Mr Makate or those of the CEO should be preferred”. In what is a clear demonstration
that Mr Makate’s models were at issue, t he minority engages with this debate at great
length in paragraphs 62-202.

[85] Second, with all this in mind, how could the Supreme Court of Appeal say that
evidence that Mr Makate’s computation was wrong was absent? In argument before
us, Vodacom cites examples of the issues that it addressed countering Mr Makate’s
models and, therefore, computation. It does so with reference to the CEO’s
determination. These examples were: PCM volumes; incremental revenue; call
duration; effective call rate; duration of the contract; and mora interest and the time
value of money.

[86] How – in the face of all of this – the Supreme Court of Appeal 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 Supreme Court of
Appeal was unaware of or disregard ed 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.

[87] Another feature that I must touch on is the ap parent readiness of the
Supreme Court of Appeal to accept whatever Mr Makate said. This may already be
apparent in parts of what I have said above. But here is what I want to deal with now:

“[The High Court] did not undertake the second leg of the Bekker test. What
compounds the matter is that the r emedy as crafted, is not what Mr Makate sought
because, as is evidenced from the amended notice of motion delivered on 9 January

because, as is evidenced from the amended notice of motion delivered on 9 January
2019, Mr Makate sought that the determination of the CEO be set aside and substituted,

MADLANGA ADCJ
34
instead of remitting it for reconsideration to the CEO. To that extent it erred. It follows,
therefore, that this Court is at large to interfere with the order of the High Court.”64

[88] I cannot conceive of any basis on which Mr Makate was – as the Supreme Court
of Appeal seems to suggest – automatically entitled to whatever he asked for. The
Supreme Court of Appeal makes this bald statement without explaining it. It also seems
to have given no consideration to the fact that, in gr anting Mr Makate what he
wanted – under paragraph 2(b) of its order65 – it was granting an order which had not
been sought by way of cross-appeal and was thus not properly before it. I explain why
this was not properly before the Supreme Court of Appeal later. It may well be that in
the end Mr Makate will get what he is asking for. But that is a conclusion which must
be reached after a proper consideration of the issues.

[89] The Supreme Court of Appeal also appears not to have considered the
substantive content of the substituted order it impermissibly granted in fa vour of
Mr Makate. The Supreme Court of Appeal simply copied paragraph 2 of Mr Makate’s
High Court notice of motion verbatim, thus incorporating the revenue-sharing range of
5%-7.5% and the two alternative forms of interest. If the Supreme Court of Appeal had
properly considered the relief, it would have realised that – although a litigant can claim
relief across a range or in the alternative – a court has to fix the relief with precision.
As previously mentioned, the range and alternatives resulted in huge monetary
differences.

[90] There is the question of call duration and its relevance to the revenue share.
Mr Makate’s Model 9A distinguished between “Total Call Revenue” and “Total PCM
Revenue”, the latter being the sum of total call revenue plus additional items described
as “PCM Advertising Revenue”, “Please Recharge Me Revenue” and “Vodacom

as “PCM Advertising Revenue”, “Please Recharge Me Revenue” and “Vodacom
Operating Countries”. The Total Call Revenue was (in round figures) R196.84 billion

64 Supreme Court of Appeal judgment above n 3 at para 36.
65 This is the paragraph that provides for a range of 5%-7.5% revenue share and mora interest or interest in terms
of section 2A(5) of the Prescribed Rate of Interest Act.

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35
while the Total PCM Revenue was R273.39 billion. Ho wever, according to the CE O,
Mr Makate abandoned the additional items at the hearing before him, pressing for a
share only of Total Call Revenue. As a result, the High Court’s order was confined to
the Total Call Revenue. Mr Makate’s Model 9B, described as a “brief summary of
Model 9A”, was likewise confined to Total Call Revenue. So, the Supreme Court of
Appeal seems not to have been aw are of the distinction between Total Call R evenue
and Total PCM Revenue and that, as a result of the additional items, a share of the latter
would be vastly higher than a share of the former.

[91] In Model 9 A, the average duration of an incremental call ranged from
3.68 minutes to 7.61 minutes over the 18 -year period. However, the High Court
directed the CEO to determine Mr Makate’s compensation afresh on the basis, inter alia,
of an average call duration of two minutes, noting in its judgment that in argument
Mr Makate “eventually agreed that he is not opposed to the application of a call duration
of two minutes”. 66 Unsurprisingly, therefore, call dur ation was not an issue in the
Supreme Court of Appeal.

[92] There is a broadly linear relationship between Total Call Revenue and the
assumed average duration of a call. If in a particular year the average call duration were
assumed to be six minutes, the resultant Total Call Revenue would be about three times
higher than if one assumed an average call duration of two minutes. The average call
duration (not weighted) across the full period covered by Model 9A is 5.9 minutes. In
short, the Total Call Revenue ordered by the Supreme Court of Appeal, and the resultant
pre-interest compensation to which Mr Makate would be entitled, is likely to be around
three times higher than revenue based on the call duration of two minutes that was
uncontested before the Supreme Court of Appeal. Reference in the order to Model 9A,

uncontested before the Supreme Court of Appeal. Reference in the order to Model 9A,
9B and 9BB effectively meant that the order incorporated the significantly higher call
duration – and not the uncontested two-minute call duration. Notably, though, the
Supreme Court of Appeal did not mention call duration at all in its judgment. One is

66 High Court judgment above n 2 at para 106.

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36
driven to conclude that – insofar as the model it ordered should be applicable related to
call duration – the Supreme Court of Appeal was unaware of the content of that model.
It is easy to make this conclusion regard being had to the significant difference between
the call duration in that model and the uncontested call duration.

[93] To conclude, the evidentiary matters and legal questions highlighted above and
which the Supreme Court of Appeal disregarded or of which it was unaware or on which
it was confused were key to the determination of the contest between the disputants.
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. As indicated above, it cannot do that. To put it bluntly, the real appeal 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.

[94] On the factual issues, here is what differentiates the above analysis from what
was at issue in Boesak,67 Mbatha68 and similar cases. In each of those cases, the factual
perspective that was being advanced was calculated to demonstrate that the facts ought
to have been decided in favour of the party concerned. Of course, this Court held that
the contest on the factual matter did not engage its jurisdiction. In the present case, the
treatment of the facts is not about which version should take precedence. Rather, it
seeks to demonstrate that the Supreme Court of Appeal misunderstood, disregarded,
was confused about, or was unaware of the facts to the extent that it failed to decide the
appeal before it. This judgment does not pronounce one way or the other on the factual
issues that have been dealt with.

Absence of cross-appeal
[95] Although my conclusion on the failure of justice point is dispositive of the appeal

[95] Although my conclusion on the failure of justice point is dispositive of the appeal
and thus renders moot the ground of appeal that – absent a cross-appeal by Mr Makate

67 Boesak above n 21.
68 Mbatha above n 22.

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37
– the Supreme Court of Appeal lacked jurisdiction, I believe that it is necessary to deal
with this ground of appeal, albeit briefly. That is so because it is desirable to correct
any misapprehension which the Supreme Court of Appeal’s judgment may have
brought about. And full argument was presented on this ground. The correction will
be of assistance to courts that are bound by decisions of the Supreme Court of Appeal.

[96] The central issue in Vodacom’s appeal before the Supreme Court of Appeal was
whether the CEO’s determination was reasonable in accordance with the Bekker test.69
As stated above, Vodacom supported that determination. The Supreme Court of Appeal
held that – based on the Bekker test – the CEO’s determination “was wrong”. 70 It did
not end there. It went on to hold that the High Court’s or der did not accord with what
Mr Makate had asked for in his notice of motion, which was that the CEO’s
determination be set aside and substituted with the High Court’s own determination. 71
The Supreme Court of Appeal emphasised that Mr Makate sought a substitution, not
remittal. It then held that it could find no reason why Mr Makate’s computation of
reasonable compensation should not be accepted. For that reason, instead of remittal,
Mr Makate’s calculation should have been accepted. It proceeded to make the
substituted order. That is the order that has the strange features mentioned above.72

[97] Earlier I highlighted that Mr Makate did not cross -appeal to the Supreme Court
of Appeal. Before us Vodacom argued that the Supreme Court of Appeal lacked
jurisdiction to grant the subst ituted order in the absence o f a cross -appeal. I agree.
Mr Makate argued that the Supreme Court of Appeal did not exceed its jurisdiction.
That is so because the issue of substitution was pleaded before the High Court. And it
was relevant to the order made by that Court and to the proceedings before the

69 Bekker above n 16.
70 Supreme Court of Appeal judgment above n 3 at para 34.
71 Id at para 36.
72 On the percentage of revenue to which Mr Makate is entitled, the order stipulates it as 5% -7.5%. That range
translates to huge differences in the amounts payable across the range. The order should have made one specific
choice. Also, on interest the order states two alternatives. On that too, which rate takes precedence?

MADLANGA ADCJ
38
Supreme Court of Appeal. The argument continues that Vodacom’s complaint was
that, in effect, the High Court order was a substitution. As a result, the appropriateness
of that substitution was fully ve ntilated by the parties before the Supreme Court of
Appeal, concludes the argument. In support of his argument, Mr Makate relied on this
Court’s judgment in Saratoga Avenue .73 He argued that an appellate court is
empowered to make the order that the court below should have made, and the latter
order becomes the order of the court below.

[98] This argument is unavailing. If I understand it correctly, the debate about
substitution that Mr Makate says took place in the Supreme Court of Appeal concerned
the High Court order which, according to him, Vodacom considered to be a substitution
of the CEO’s determination. That is the substitution that was fully ventilated. It is not,
and could not have been, the same as the substituted order made by the Supreme Court
of Appeal.

[99] So, the Supreme Court of Appeal decided a case that was not before it and which
Vodacom was not called upon to answer. In Gent the Supreme Court of Appeal held:

“In Shatz Investments (Pty) Ltd v Kalovyrnas [1976 (2) SA 545 (A) ] this court was
confronted with the question whether, without any cross -appeal, it could correct an
order of a trial court by making a prayer for interest, which that court had not granted.
Trollip JA said the following:
‘The court a quo did not award it, possibly because it was not claimed
in the pleadings. But, be that as it may, in the absence of any
cross-appeal to correct the order of th e court a quo to plaintiff’s
advantage and defendant’s detriment by including an award of such
interest, we cannot deal with it.’
This dictum reaffirmed trite principles. These are that a respondent in an appeal may
support the order appealed against on any ground that properly appears from the record.

support the order appealed against on any ground that properly appears from the record.
In order to obtain a variation of the order, however, a respondent must cross -appeal

73 Saratoga Avenue above n 19 at para 7.

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39
with the necessary leave, save perhaps in exceptional circumstances where there is no
prejudice to the appellant.”74

[100] This principle predates the Constitution. In the current constitutional era, the
principle assumes a constitutional dimension. It fit s squarely within the dictates of the
section 34 guarantee of a fair hearing. It is at variance with a fair hearing for a court to
decide an issue that has not been pleaded and which the affected party was not called
upon to answer. In Koch & Kruger Brokers this Court held:

“Jurisdiction is determined by an applicant’s pleaded case. I am satisfied that the
complaint that the High Court strayed beyond the separated issue and thereby violated
the applicants’ section 34 rights engages our constitutional jurisdiction.”75

[101] The Gent quotation above refers to the question of prejudice: “In order to obtain
a variation of the order . . . a respondent must cross -appeal . . . , save perhaps in
exceptional circumstances where there i s no prejudice to the appellant ”.76 Vodacom
and Mr Makate adopt contrasting views on the impact of the order of the Supreme Court
of Appeal. The difference hinges on the nature of prejudice suffered by Vodacom as a
result of the order. On the one hand, Mr Makate argues that no prejudice is suffered by
Vodacom because the amount due from Vodacom under the order of the Supreme Court
of Appeal is lower than the amount due under the High Court’s order. On the other
hand, Vodacom contends that the Court should not follow this utilitarian understanding
of prejudice and argues that prejudice is not about the outcome but consists in the
violation of the court process.

[102] In accordance with the High Court remittal order, the CEO is yet to make fresh
calculations followed by a second determination. I am loath to engage in any
comparisons of the amounts involved in the manner suggested by Mr Makate. Overall,

74 Gent v Du Plessis [2020] ZASCA 184 at paras 15-16.
75 Koch & Kruger Brokers CC v Financial Sector Conduct Authority [2023] ZACC 27; 2023 (11) BCLR 1329
(CC) at para 24.
76 Gent above n 74 at para 16.

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40
I find Vodacom’s approach on prejudice more convincing as it accords with section 34
of the Constitution and the right to have a fair process. By deciding a case that was not
before it, the Supreme Court of Appeal deprived Vodacom of the opportunity to make
submissions on whatever issue it might have been minded to on the possibility of a
substituted order.

[103] I do not find it necessary to deal with the remaining grounds of appeal.

Remedy
[104] This judgment merely highlights the fatal shortcomings in the Supreme Court of
Appeal’s judgment. It does not make its own decision on any of the attendant issues.
Those are the very issues that ought to have been decided by the Supreme Court of
Appeal. It seems to me the just and equitable remedy 77 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 remain for determination in the appeal are factual questions that do not ordinarily
fall for determination by this Court. The jurisdiction of this Court is confined to
constitutional issues and arguable points of law of general public importance which
ought to be considered by it. 78 In this judgment we dealt with factual issues, without
deciding them, purely to demonstrate the Supreme Court of Appeal’s 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.

[105] In sum, it seems to me, therefore, that 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 of that Court.


77 Section 172(1)(b) of the Constitution provides that “[w]hen deciding a constitutional matter within its power, a
court . . . may make any order that is just and equitable”.
78 Section 167(3)(b) of the Constitution.

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41
Costs
[106] Obviously, costs in this Court must follow the result. About costs of the abortive
Supreme Court of Appeal hearing, none of the parties is to blam e. It seems to me that
an appropriate costs order is that each party must bear their own costs. Those wasted
costs are confined to the costs directly relating to the abortive hearing in the
Supreme Court of Appeal. The other costs incurred to date in the Supreme Court of
Appeal – in particular, the preparation of the record and written argument – have not
been wasted, and will be determined when the Supreme Court of Appeal, upon remittal,
decides the appeal.

[107] Vodacom asked for costs of three counsel. Having regard to the size of the
record,79 the complexity and novelty of the issues and the very large amount at stake, I
think that is a fair and just request. Mr Makate himself saw the need to take the
precaution of having three counsel appear for him before us. His written argument was
settled by six counsel, three of whom were silks . So, costs of three counsel will b e
awarded.

Order
[108] Accordingly, the following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Supreme Court of Appeal is set aside.
4. The matter is remitted to the Supreme Court of Appeal to be reheard by a
differently constituted panel of Judges of that Court.
5. Each party must pay their own wasted costs in respect of the abortive
hearing of the matter in the Supreme Court of Appeal.
6. The first respondent must pay the applicant’s costs in this Court, including
the costs of three counsel.

79 The record totalled 27 volumes and just under 3 000 pages.

For the Applicant:



For the First Respondent:

W Trengove SC, R Solomon SC,
M Gumbi SC and A Raw i nstructed by
Leslie Cohen and Associates

R Michau SC, S Scott and D Mutemwa
instructed by Stemela and Lubbe
Incorporated