Case Review: Vodacom (Pty) Ltd v Makate and Another [2025] ZACC 13

1. Overview of the Judgment

The Constitutional Court ("CC") handed down an unprecedented order remitting the long-running “Please Call Me” dispute between Vodacom and Nkosana Makate back to the Supreme Court of Appeal ("SCA"), directing that a differently constituted panel must rehear the matter. The CC described the SCA’s handling of the case as marked by “fatal shortcomings” that failed to consider key issues, disregarded material evidence, and breached the right to a fair hearing under Section 34 of the Constitution. This ruling has significant procedural, constitutional, and commercial implications, demonstrating rare institutional accountability imposed by the apex court on another superior court.

2. Key Findings of the Constitutional Court

The CC’s unanimous judgment, delivered by Madlanga ADCJ, concluded that the SCA’s judgment amounted to a total failure of justice. The SCA ignored or misunderstood crucial evidence and failed to address fundamental questions that went to the heart of the dispute. This breached the right to a fair hearing under Section 34, which, as the CC clarified, encompasses a “duty of proper consideration” requiring courts to engage with material evidence and arguments before deciding a case.

The CC also found that the SCA exceeded its jurisdiction by granting relief (a substituted compensation order for Mr Makate) that had not been sought via a cross-appeal. Moreover, the substituted order was “hopelessly vague” because it awarded a revenue share of “5–7.5%” and provided two alternative interest rates, creating uncertainty about implementation. These defects justified the extraordinary directive that a different panel of the SCA rehear the appeal.

3. Significance and Implications

This is arguably the first time the CC has ordered that a matter be reheard by the SCA before a completely different bench, breaking with its usual practice of either making a final determination or remitting without directing panel composition. The CC stressed that procedural integrity is as important as substantive justice. Even after nearly two decades of litigation, the CC declined to make a final factual determination because its constitutional jurisdiction does not ordinarily allow it to resolve purely factual disputes. Instead, it emphasised that litigants are entitled to a proper, reasoned determination by the appropriate court in line with Section 34.

Commercially, the ruling highlights the unpredictability of complex litigation in South Africa. It shows that cases can be reset after many years if serious procedural failures occur, prolonging disputes and creating uncertainty for litigants and investors. The directive is a stark warning to appellate courts that procedural fairness lapses and failure to engage with evidence can vitiate judgments entirely, potentially leading to rehearing orders and reputational consequences.

4. Broader Precedent and Future Outlook

The CC’s ruling is a rare public rebuke of the SCA, affirming that even the highest appellate courts are constitutionally accountable for their adjudicative performance. It expands the interpretation of Section 34 to require courts to provide “adequate reasons evidencing proper consideration” and warns that failure to do so renders a judgment constitutionally defective. Future cases may see similarly strong remedies, including directions for rehearing before new panels, where gross adjudicative failures undermine the fairness of proceedings. This judgment will likely shape appellate practice in South Africa, underlining that fairness and thorough engagement with evidence are essential to upholding the rule of law.