Vodacom Statement – Vodacom appeals Supreme Court of Appeal judgment

Midrand, Johannesburg - Vodacom can confirm that it has lodged an application with the Constitutional Court for leave to appeal the Supreme Court of Appeal’s (SCA) judgement and order on the Please Call Me matter delivered on 6 February 2024.

As a responsible corporate citizen, Vodacom is respectful of the judicial system and abides by the laws of South Africa. Having considered the SCA judgment and order, it is Vodacom’s view that there are key aspects of this matter which do not accord with the spirit of the law and that the judgment and order are fundamentally flawed. It is apparent from the dissenting judgment of the SCA that the majority judgment overlooked or ignored many of the issues between the parties and their evidence and submissions relating to those issues.

Therefore, as a matter of law, in its application for leave to appeal to the Constitutional Court, Vodacom makes inter alia the following submissions:

• the SCA’s order impinges on the Rule of Law in terms of section 1 of the Constitution of the Republic of South Africa 1996 (“the Constitution”) and deprives Vodacom of its right to a fair trial under section 34 of the Constitution;
• the SCA misdirects itself by considering and deciding on issues which had not been placed before it for adjudication by either Vodacom or Mr Makate;
• the SCA selectively chooses to only have regard to Mr Makate’s evidence, as in the case of models for computing compensation payable to Mr Makate, while ignoring swathes of evidence in this regard presented by Vodacom contesting Mr Makate’s version; and
• the SCA orders are unintelligible, incomprehensible, and vague rendering them incapable of implementation and enforcement.

The impact of the SCA Judgment, should it be upheld, would be vast and wide-ranging on both Vodacom South Africa and Vodacom Group, as well as the attractiveness of South Africa as an investment destination. It would negatively impact our employees, shareholders and Vodacom’s contribution to public finances. It would also have an impact on our network investment, coverage, and social programmes.

Vodacom has previously negotiated with Mr. Makate in an attempt to agree reasonable compensation payable to him. These efforts, to date, unfortunately have failed. Vodacom remains open to constructive dialogue and good faith negotiations and, without prejudice to its Constitutional Court Appeal process, to agree a fair and reasonable amount as compensation for Mr Makate’s idea that led to the development of the PCM product. It is Vodacom’s desire that the matter be amicably resolved and brought to a timely conclusion.

Background to the Please Call Me matter:

In line with a 2016 Constitutional Court order, Vodacom’s CEO determined reasonable compensation of R47 million to Kenneth Nkosana Makate, a former employee of Vodacom, for a “buzz idea” which was developed and launched by Vodacom as a free service to its customers in 2001. Mr Makate rejected this determination and brought an application to the Gauteng Division of the High Court of South Africa (“High Court”) to have the CEO’s determination judicially reviewed and set aside. On 8 February 2022, the High Court set aside the CEO’s determination and ordered him to reconsider the settlement offered to Mr. Makate. Vodacom launched an application for leave to appeal against the judgment on 25 February 2022 and order of the High Court. On 6 February 2024, the Supreme Court handed down its judgment.