Makate v Vodacom: A Definitive Legal Analysis of the Constitutional Court’s 2025 Judgment and the Enduring ‘Please Call Me’ Saga

The legal saga of Nkosana Makate v Vodacom, a quarter-century-long dispute that has become a touchstone for corporate accountability, intellectual property, and contract law in South Africa, reached another pivotal juncture on July 31, 2025. This case, often framed in the public consciousness as a “David vs. Goliath” battle, has traversed every level of the nation’s judiciary, captivating legal scholars, financial analysts, and the general public alike. On that day, the Constitutional Court of South Africa, the country’s apex court, handed down its much-anticipated judgment in Vodacom’s appeal against a staggering multi-billion Rand order from the Supreme Court of Appeal (SCA).

The outcome was a decisive victory for the telecommunications giant on procedural grounds. In a judgment delivered by Acting Deputy Chief Justice Mbuyiseli Madlanga on his final day on the bench, the Constitutional Court upheld Vodacom’s appeal, setting aside the SCA’s 2024 order. Critically, the court did not bring finality to the quantum of compensation owed to Mr. Makate. Instead, it referred the matter back to be heard by a new, differently constituted panel of the Supreme Court of Appeal. This ruling effectively resets a significant portion of the litigation, winding the clock back to the state of play in early 2024, before the contentious SCA judgment.

This report provides an exhaustive legal and contextual analysis of the Constitutional Court’s July 31, 2025, decision. It deconstructs the Court’s reasoning, places the judgment within the tortuous chronology of the 25-year dispute, dissects the key legal principles and financial arguments at the heart of the conflict, and explores the profound and enduring implications of the saga for South African law, corporate governance, and the broader pursuit of justice.

 

I. The 2025 Constitutional Court Judgment: A Procedural Reset

The Constitutional Court’s judgment of July 31, 2025, was not an adjudication on the merits of what constitutes “reasonable compensation” for Mr. Makate’s “Please Call Me” (PCM) idea. Rather, it was a focused and decisive intervention on the grounds of judicial process, jurisdiction, and the constitutional right to a fair hearing. The ruling underscored the principle that the manner in which a conclusion is reached is as important as the conclusion itself.

 

The Court’s Final Order: Upholding the Appeal and Remittal to the SCA

 

The operative part of the judgment, delivered after eight months of deliberation following the hearing on November 21, 2024, was unambiguous. The Court granted Vodacom leave to appeal and upheld its appeal against the Supreme Court of Appeal’s order of February 6, 2024. Consequently, the SCA’s order, which had directed Vodacom to pay Mr. Makate a percentage of PCM revenue potentially amounting to tens of billions of Rands, was set aside in its entirety.

The dispositive part of the order was the remittal of the case to the Supreme Court of Appeal, with the specific instruction that it be heard by a new panel of judges. This directive is highly significant, as it signals a need for a complete and fresh consideration of Vodacom’s appeal against the 2022 High Court decision, untainted by the legal and procedural errors the Constitutional Court identified in the first SCA panel’s approach.

In a SENS announcement to shareholders, Vodacom immediately expressed that it was “pleased” with the outcome and stated its intention to “review the judgment in full and take the appropriate next steps” in preparation for the new hearing at the SCA.

 

Ratio Decidendi: Deconstructing the Court’s Reasoning on Jurisdictional Overreach

 

The core reasoning (ratio decidendi) of the Constitutional Court’s decision directly addressed the legal questions it had set out to answer when it first announced the judgment date. These were:

1. Did the Supreme Court of Appeal disregard the true issues before it, resulting in a total failure of justice and a breach of the rule of law and the right to a fair hearing?
2. Did the Supreme Court of Appeal act beyond its jurisdiction by setting aside and substituting the High Court’s order with its own, in the absence of a cross-appeal by Mr. Makate?

The Court evidently found in Vodacom’s favour on these questions. Vodacom’s central argument was that the SCA had fundamentally misdirected itself by deciding on issues not properly before it. The matter before the SCA was Vodacom’s appeal against the 2022 High Court order, which had reviewed the CEO’s determination and remitted it back to him with specific directives. Mr. Makate, while opposing Vodacom’s appeal, had not filed a cross-appeal asking the SCA to go further and substitute the High Court’s order with its own calculation of the quantum.

The power of an appellate court is generally constrained by the relief sought by the parties in the notice of appeal and any cross-appeal. By fashioning a novel remedy—a specific compensation formula of 5% to 7.5% of revenue over a nearly two-decade period—the SCA had ventured beyond its appellate mandate. It effectively stepped into the shoes of a court of first instance, or even the contractually-designated deadlock-breaker, and made a determination that neither party had argued for in that forum. The Constitutional Court’s decision to overturn the SCA judgment signals a firm affirmation of this principle of appellate restraint, concluding that the SCA acted beyond its powers, or

ultra vires.

The Rule of Law and Fair Hearing: Unpacking the Court’s Assessment

 

Vodacom’s appeal was strategically framed not merely as a commercial dispute but as a defence of foundational constitutional principles. The company contended that the SCA’s judgment infringed upon the Rule of Law, as enshrined in Section 1(c) of the Constitution, and violated its right to a fair hearing under Section 34.

Two key arguments supported this position. First, Vodacom claimed the SCA’s order was “unintelligible, incomprehensible, and vague, rendering [it] incapable of implementation and enforcement”. This vagueness, Vodacom argued, violated the principle of legal certainty, which is a core component of the rule of law. Second, and more critically, Vodacom asserted that the SCA had “selectively” chosen to regard only Mr. Makate’s evidence and computational models while ignoring “swathes of evidence” it had presented to contest Makate’s version. This alleged failure to properly weigh all evidence before it would constitute a breach of the

audi alteram partem rule (“hear the other side”), a fundamental tenet of natural justice and the right to a fair hearing.

The Constitutional Court’s decision to uphold the appeal in its entirety serves as a validation of these procedural and rule-of-law-based arguments. The judgment suggests that the Court found sufficient merit in Vodacom’s claims that the SCA’s process was so flawed as to constitute a failure of justice, necessitating the setting aside of its order.

The Path Forward: The Mandate of the New SCA Panel

 

The effect of the judgment is to return the case to the procedural position it was in after the 2022 High Court ruling. The new SCA panel is now tasked with hearing Vodacom’s original appeal against that High Court judgment afresh. The central legal questions for this new panel will be:

1. Was the High Court correct in its application of the Bekker test to find that the CEO’s R47 million determination was reviewable?
2. If the determination was correctly set aside, was the High Court’s chosen remedy—remittal to the CEO with prescriptive directives—the appropriate one in law?

This new hearing will proceed with the benefit of the arguments and reasoning from the overturned SCA judgment and the definitive procedural ruling from the Constitutional Court. For Mr. Makate’s legal team, it is now clear that arguing for substitution at the SCA level is a flawed strategy; their focus must be on defending the High Court’s decision to review and remit. For Vodacom’s team, the Constitutional Court’s ruling provides significant momentum. They will likely press their core argument with renewed vigour: that the CEO’s determination was a reasonable exercise of his mandate as a deadlock-breaker and should never have been overturned in the first place. This sets the stage for a more focused, and likely more intense, legal battle at the SCA, centered squarely on the reasonableness of the CEO’s original determination.

The Constitutional Court’s decision was ultimately a powerful reaffirmation of procedural justice over a substantive outcome. The Court did not express a view on whether R47 million or a multi-billion Rand figure is fair compensation. It ruled that the process by which the SCA arrived at its figure was legally indefensible. The Court’s role as the ultimate guardian of the Constitution required it to ensure that lower courts adhere to the rules of procedural fairness and their jurisdictional limits. The decision was therefore a necessary corrective measure to uphold the integrity of the judicial process, regardless of the perceived merits of the underlying financial dispute.

 

II. The Tortuous Legal Odyssey: A Chronology of the Dispute (2000-2024)

To fully grasp the import of the 2025 Constitutional Court judgment, it is essential to trace the case’s serpentine path through South Africa’s judicial system. This 25-year history is a narrative of shifting legal battlegrounds, from the validity of an oral contract to the quantum of compensation, culminating in the recent focus on procedural propriety.

 

The 2000 Agreement: Genesis of the Dispute and the Oral Contract

 

The dispute’s origins lie in November 2000. Nkosana Makate, at the time a trainee accountant at Vodacom, conceived of a service that would allow a user with no airtime to send a free message to another user to request a call back. The idea was born from his personal experience of trying to communicate with his then-girlfriend.

On the advice of a mentor, Mr. Makate presented his idea to Mr. Philip Geissler, Vodacom’s then-Director of Product Development and Management. The two men reached an oral agreement with the following key terms: Vodacom would develop and trial the product based on Mr. Makate’s idea. If it proved to be commercially successful, Mr. Makate would be paid a share of the revenue it generated. While Mr. Makate had proposed a 15% share, the parties agreed to defer negotiations on the precise amount. Crucially, they also agreed on a “deadlock-breaking mechanism”: if they were unable to agree on the compensation, Vodacom’s CEO would determine the amount.

 

The Landmark 2016 Constitutional Court Ruling: Establishing Vodacom’s Liability

 

Following the successful launch of the “Please Call Me” service in 2001, Vodacom failed to compensate Mr. Makate. After years of inaction from the company, Mr. Makate initiated legal proceedings in 2008. The case eventually reached the Constitutional Court, which delivered a landmark judgment on April 26, 2016.

This seminal ruling established Vodacom’s liability. The Court found that Mr. Geissler had possessed “ostensible authority” to act on behalf of the company, thereby making the oral agreement valid and binding on Vodacom. The Court also dismissed Vodacom’s defence that the claim had prescribed, ruling that Mr. Makate’s claim to enforce a right to negotiate was not a “debt” in the narrow sense required by the Prescription Act.

The Court’s order had three critical components:

1. It declared that Vodacom was bound by the agreement.
2. It ordered Vodacom to “commence negotiations in good faith” with Mr. Makate to determine reasonable compensation.
3. It affirmed that should these negotiations fail, the matter “must be submitted to Vodacom’s Chief Executive Officer for determination of the amount within a reasonable time”.

 

The Deadlock and the CEO’s Determination: The R47 Million Offer

 

As anticipated, the good-faith negotiations collapsed. The parties’ valuations were irreconcilable: Mr. Makate’s team demanded compensation in the tens of billions of Rands, while Vodacom’s initial offer was R10 million.

In accordance with the 2016 court order, the matter was referred to Vodacom’s CEO, Mr. Shameel Joosub, to act as the deadlock-breaker. After receiving submissions from both parties, Mr. Joosub issued his determination on January 9, 2019. He concluded that a “reasonable compensation” for Mr. Makate’s idea was R47 million. This figure was derived from an averaging of four different valuation models he had considered. A key and highly contentious assumption underpinning his calculation was the capping of the contract’s duration at five years, a period he described as “generous”.

The 2016 Constitutional Court judgment, while a clear victory for Mr. Makate on the question of liability, contained the seeds of the next decade of litigation. By appointing the CEO of the defendant company as the “deadlock-breaker,” the court established a mechanism fraught with inherent conflict of interest. The CEO has a fiduciary duty to act in the best interests of Vodacom and its shareholders. This duty stands in direct tension with the obligation to act as a quasi-impartial valuer determining a “reasonable” and “equitable” compensation for Mr. Makate. Given this structural conflict and the vast financial chasm between the parties’ positions, any determination made by the CEO was almost certain to be challenged in court. The deadlock-breaking mechanism, intended to provide finality, instead created a new, reviewable decision that became the next legal battleground.

 

From the High Court to the Supreme Court of Appeal: The Escalation of the Quantum Dispute

 

Mr. Makate rejected the R47 million offer as “inherently unfair” and launched a judicial review application in the Gauteng Division of the High Court, Pretoria.

On February 8, 2022, Judge Wendy Hughes ruled in Mr. Makate’s favour. She found that the CEO’s determination process was flawed and that his conclusions were riddled with errors. The judgment set aside the R47 million determination and remitted the matter back to the CEO for a fresh determination. However, the High Court attached stringent directives to this remittal, ordering that the new calculation must be based on the premise that Mr. Makate “is entitled to be paid 5% of the total voice revenue generated from the PCM product from March 2001 to March 2021”.

Vodacom appealed this judgment and its directives to the Supreme Court of Appeal. On February 6, 2024, the SCA handed down its judgment, which represented a radical judicial intervention. The majority, in a judgment penned by Mocumie JA, not only dismissed Vodacom’s appeal but went significantly further. Finding that remitting the matter back to the CEO would be a “fruitless endeavour,” the SCA set aside the High Court’s order of remittal. In its place, the SCA

substituted its own order, directing Vodacom to pay Mr. Makate “5% to 7.5% of the total revenue of the PCM product from March 2001 to date of judgment”. This order, to be calculated using models submitted by Mr. Makate’s team, was estimated by analysts to be worth between R29 billion and R55 billion.

This bold attempt by the SCA to achieve a final, decisive resolution ultimately proved to be its undoing. The majority’s palpable frustration with the protracted litigation and the perceived inequity of the CEO’s offer motivated their intervention. However, in their pursuit of a substantive resolution, they departed from established appellate procedure. This procedural misstep—substituting an order without a cross-appeal from Mr. Makate requesting such a remedy—provided Vodacom with the precise, non-merits-based legal argument it needed for a successful appeal to the Constitutional Court. The SCA’s attempt to be the final arbiter was the direct cause of its own reversal.

 

III. Pivotal Legal Principles Forged in the Dispute

 

Beyond the headlines and the staggering sums of money, the Makate v Vodacom saga has been profoundly important for the development of South African commercial and procedural law. The litigation has compelled the Constitutional Court to pronounce definitively on several key legal doctrines, making the case a multi-stage legal textbook from which a rich body of jurisprudence has emerged.

 

Ostensible Authority and Estoppel: The Foundation of Corporate Liability

 

The 2016 Constitutional Court judgment is now a leading authority on the law of agency. The High Court had initially dismissed Mr. Makate’s claim on the basis that he had not properly pleaded estoppel in his replication to Vodacom’s defence that Mr. Geissler lacked authority.

The Constitutional Court corrected this, providing a crucial clarification of the distinction between ostensible authority and estoppel. It held that ostensible authority (or apparent authority) is the authority of an agent as it appears to a third party, an appearance created by the conduct of the principal (the company). It is, from the third party’s perspective, a form of authority that can ground a cause of action and does not need to be pleaded in replication. Estoppel, by contrast, is a legal shield, not a sword. It is a defence that prevents a principal from denying an agent’s authority where a third party has relied on the principal’s representation to their detriment. The Court found that the High Court had incorrectly conflated these two distinct legal concepts, a clarification that has had a significant and lasting impact on how corporate liability through the actions of agents is understood and litigated in South Africa.

 

The Law of Prescription: Defining a “Debt” in the Constitutional Era

Vodacom’s primary defence in the initial stages of litigation was that Mr. Makate’s claim had prescribed. The company argued that the three-year prescription period for a “debt” had long expired between the 2000 agreement and the institution of legal action in 2008.

The 2016 Constitutional Court disagreed, delivering a constitutionally-infused interpretation of the Prescription Act. The Court held that Mr. Makate’s claim to compel Vodacom to enter into good-faith negotiations to determine compensation was not a “debt” in the ordinary sense of a claim for a fixed sum of money or the delivery of a specific good or service. His claim was for the enforcement of a contractual obligation to negotiate. By adopting this narrower interpretation of “debt,” the Court prevented the law of prescription from extinguishing a valid contractual right to negotiate and thereby protected the fundamental constitutional right of access to courts. This set a vital precedent for the enforceability of agreements to negotiate.

 

The Bekker Test: The Standard for Reviewing a Deadlock-Breaking Determination

 

Once the matter fell to the CEO to determine the compensation, his decision was not reviewable under the Promotion of Administrative Justice Act (PAJA), as he was not performing a public function. Instead, his determination was subject to review under the common law standard for expert valuers, as articulated in the case of Bekker v RSA Factors.

The Bekker test poses a two-part inquiry:

1. Did the valuer (in this case, the CEO) fail to exercise the judgment of a reasonable person?
2. If so, did the resulting determination lead to a “patently inequitable result”?

This test became the central battleground in the High Court and the first SCA hearing. Mr. Makate’s team argued successfully in those courts that the CEO’s decision—particularly his unilateral capping of the contract duration at five years—was so unreasonable and factually incorrect that it led to the manifestly inequitable offer of R47 million. Vodacom has consistently maintained that the CEO’s determination was reasonable, generous, and correctly applied the relevant factors. The proper application of this test will once again be the core issue for the new SCA panel.

 

Judicial Discretion and Appellate Power: The Legal Boundaries of Substitution vs. Remittal

 

The final legal principle clarified by this saga, via the 2025 Constitutional Court judgment, relates to the powers of an appellate court. When a court on review sets aside a decision, it has a choice of remedy. The default position is to remit (send back) the decision to the original decision-maker to correct the identified flaws. Only in exceptional circumstances may a court substitute its own decision for that of the original decision-maker.

Vodacom argued in its final appeal that in the specific context of a contractually appointed valuer, substitution is never a competent remedy; the court’s power is limited to remittal. The SCA’s 2024 decision to substitute was a bold departure from this norm, justified on the grounds that another remittal to the CEO would be a “fruitless endeavour”. By overturning the SCA, the 2025 Constitutional Court judgment implicitly reinforced the principle that substitution is a remedy to be exercised with great caution and, critically, only when it is procedurally proper to do so. This ruling serves as a powerful reminder to lower courts of the jurisdictional limits on their appellate and review powers.

Each stage of this litigation has been a direct consequence of the one preceding it, creating a chain reaction of legal questions that has compelled the judiciary to build a complex and layered body of jurisprudence around a single, albeit monumental, factual dispute.

IV. The Quantum Conundrum: Deconstructing the Financial Arguments

 

At its core, the Makate v Vodacom dispute is a battle over money, driven by vastly different conceptions of value and entitlement. The legal arguments over reasonableness, contract duration, and jurisdiction are ultimately proxies for a financial disagreement that spans orders of magnitude, from tens of millions to tens of billions of Rands.

 

Competing Valuation Models: Revenue Share vs. Employee Reward

 

The fundamental divide in the financial arguments stems from two opposing frameworks for calculating compensation.

• Mr. Makate’s Position (Revenue Share): Mr. Makate and his team have consistently argued that the 2000 agreement was for a share of the revenue generated by his idea. This model treats him akin to an external inventor or a third-party service provider who is entitled to a percentage of the commercial success of the product he enabled. His valuation models are therefore premised on calculating a share of the total revenue attributable to the PCM service over its entire lifespan.
• Vodacom’s Position (Employee Reward / Limited Share): Vodacom and its CEO have advanced a more constrained view. They argue that compensation should be determined based on what would have been considered reasonable for a “buzz idea” from an employee back in 2001. The CEO’s R47 million determination was an amalgamation of four models, including a restrictive “employee model” and a “forward-looking” revenue share model that was severely limited in scope. Vodacom’s central contention is that Mr. Makate provided only a nascent idea, while the company bore all the financial risk, technical development costs, and marketing expenditure to turn it into a successful service.

 

Analysis of Key Variables: The Battlegrounds of Calculation

 

The enormous gap between the parties’ figures is a result of their conflicting assumptions on three key variables:

• Contract Duration: This is the single most significant factor driving the disparity. Mr. Makate argues for a compensation period of at least 18 years (from March 2001 to 2019 or 2021), reflecting the period over which Vodacom has continuously profited from the service. His team points to Vodacom’s long-term contracts with other service providers as evidence that such durations are commercially standard. In stark contrast, the CEO’s determination was based on a five-year contract term, which he justified as being “generous” for a deal of this nature in 2001. This single variable is the primary reason one side arrives at tens of millions and the other at tens of billions.
• Revenue Base: The parties disagree fundamentally on what revenue should be included in a revenue-share calculation. Mr. Makate’s models adopt a broad definition, encompassing total voice revenue generated by return calls from PCM messages, including revenue from contract subscribers (both in- and out-of-bundle) and interconnect fees (Mobile Termination Rates, or MTRs). The CEO’s models used a much narrower revenue base, which the SCA later found had unreasonably excluded key income streams. Furthermore, there is a dispute over whether advertising revenue, which is appended to PCM notifications, should be included.
• Percentage Share: While Mr. Makate initially requested 15% of revenue , his more recent models, which were accepted by the SCA in its overturned 2024 judgment, proposed a range of 5% to 7.5%. The CEO’s models also used a 5% share in some scenarios, but this percentage was applied to a drastically smaller revenue base and for a much shorter duration, resulting in a far lower absolute figure.

The entire financial dispute can be seen as hinging on the legal determination of one outcome-determinative variable: the duration of the contract. The choice between a 5-year and an 18-plus-year term is the mathematical difference between a multi-million and a multi-billion Rand payout. The complex legal arguments about the Bekker test and what a “reasonable” CEO would have contemplated in 2001 are not abstract historical debates; they are high-stakes legal battles fought to establish this single, critical financial input.

 

Table 1: Comparative Analysis of Compensation Valuations in the Makate v Vodacom Dispute

 

The following table summarises the various valuations and offers that have featured in the dispute, highlighting the immense financial gap and the differing assumptions that underpin each figure.

Vodacom’s Stated Financial Risks: Assessing the Arguments

 

Throughout the later stages of the litigation, Vodacom has consistently warned that upholding the SCA’s multi-billion Rand order would have “vast and wide-ranging” negative consequences. The company has publicly stated that such a payout would negatively impact its employees, its shareholders (including its British parent company, Vodafone), its capacity for network investment and social programmes, and even the broader attractiveness of South Africa as an investment destination.

This argument is a crucial part of Vodacom’s legal and public relations strategy. By framing the case as a matter of significant public and national economic interest, the company seeks to add weight to its legal arguments and pressure the courts to consider the broader consequences of a potentially crippling financial award.

 

V. Broader Implications and Unresolved Questions

 

The Makate v Vodacom saga resonates far beyond the courtroom walls, raising fundamental questions about intellectual property, corporate ethics, and access to justice in modern South Africa. It has inadvertently become a stress test for multiple systems at once: the efficiency of the judiciary, the viability of litigation funding, the robustness of corporate IP policies, and the very definition of fairness in contract law.

 

The “Idea” vs. “Invention” Debate: Intellectual Property in the Absence of a Patent

 

This case is, at its heart, a contractual dispute about compensation for an idea, not a case of patent infringement. Mr. Makate never held a patent for the PCM service. This distinction is critical. Under intellectual property law, an idea itself is not protectable. Protection is granted to the specific expression of an idea (copyright) or to a novel and inventive application of an idea that results in a new product or process (patent).

A significant side-narrative has been the claim that Mr. Makate’s idea was not original and was in fact derived from a similar service developed by MTN’s Ari Kahn, who did hold a patent. However, this is legally distinct from Vodacom’s contractual obligation. Furthermore, legal analysis presented in the public domain suggests that Mr. Makate could not have infringed on Kahn’s patent, as the patent application was not yet public information at the time Makate pitched his idea to Vodacom in November 2000.

The most crucial lesson to emerge from this aspect of the case is the paramount importance of clear, written contractual agreements. For innovators with ideas that may not meet the stringent criteria for patentability, a robust contract is the only effective means of securing a right to compensation.

 

Corporate Governance and Employee Innovation: Lessons for South African Businesses

 

The case serves as a stark cautionary tale for corporations regarding the handling of employee-generated ideas, particularly those that fall outside the employee’s formal job description. Mr. Makate was a trainee accountant, not a product developer. This fact significantly weakened any potential claim by Vodacom that the idea was created “in the course and scope of his employment” and was therefore the automatic property of the company.

Legal and business experts have pointed to this case as a catalyst for reform in corporate governance. Companies are now acutely aware of the need to:

1. Establish formal, transparent channels for employees to submit innovative ideas.
2. Implement well-drafted employment contracts and intellectual property policies that explicitly address the ownership of and remuneration for employee innovations.
3. Negotiate in good faith and formalise agreements for valuable ideas to avoid costly and reputationally damaging litigation down the line.

 

Access to Justice and the “David vs. Goliath” Paradigm

 

The sheer duration of the case—a quarter of a century—highlights a critical issue in the South African legal system: the potential for a well-resourced litigant to use protracted appeals to exhaust a less wealthy opponent. The “Stalingrad” legal strategy, where every point is fought and every possible appeal is lodged, can create a significant power imbalance that raises questions about true access to justice.

This case has also become a landmark victory for the litigation funding industry in South Africa. It is widely acknowledged that Mr. Makate would have been unable to sustain his legal battle against a corporate giant like Vodacom without the financial backing of third-party funders, who agree to cover legal costs in exchange for a share of the final settlement. The saga demonstrates the crucial role that litigation funding can play in levelling the playing field and enabling individuals to vindicate their rights against powerful entities.

 

The Future of the Dispute: Predicting the Next Steps

 

The Constitutional Court’s 2025 judgment is not the end of the road. The matter now returns to a new panel at the Supreme Court of Appeal, which will have to re-hear Vodacom’s appeal against the 2022 High Court decision. There are two primary potential outcomes of this new hearing:

1. The SCA could uphold Vodacom’s appeal: The new panel could find that the High Court erred and that the CEO’s R47 million determination was, in fact, reasonable and not patently inequitable. This would be a comprehensive victory for Vodacom and would likely mark the end of Mr. Makate’s claim for a larger sum.
2. The SCA could dismiss Vodacom’s appeal: The new panel could agree with the High Court that the CEO’s determination was flawed and should be set aside. In this scenario, it would have to uphold the High Court’s remedy of remitting the matter back to the CEO with directives. This would restart the determination process, potentially leading to a new offer from the CEO and, almost inevitably, another round of judicial review.

Regardless of the outcome at the SCA, it is highly probable that the losing party will once again seek leave to appeal to the Constitutional Court. True finality in this monumental dispute remains an elusive prospect.

 

Conclusion: Synthesis and Forward-Looking Analysis

 

The Constitutional Court’s judgment of July 31, 2025, in Makate v Vodacom stands as a masterclass in judicial restraint and a staunch defence of procedural integrity. It deliberately sidestepped the contentious question of quantum to address a more fundamental issue: the proper exercise of judicial power. By overturning the Supreme Court of Appeal’s order on the grounds of jurisdictional overreach, the Court did not resolve the financial dispute that has animated this saga for over a decade. Instead, it corrected a significant procedural misstep, thereby preserving the coherence and predictability of the appellate process.

The ruling effectively resets the legal chessboard, returning the core of the dispute to the question that was before the High Court in 2022: was the Vodacom CEO’s determination of R47 million a reasonable and equitable exercise of his mandate as a deadlock-breaker? The battle will now be re-fought before a new panel of the SCA, with the focus narrowed to a meticulous re-examination of the CEO’s decision-making process through the lens of the common law Bekker test.

While the 2025 judgment provides crucial procedural clarity, the end of this legal epic is not yet in sight. The path forward will almost certainly involve another lengthy hearing at the SCA, followed by the near-inevitable prospect of a final appeal back to the Constitutional Court. The enduring legacy of Makate v Vodacom is thus not in any single outcome, but in its journey. It is a saga that has profoundly shaped South African contract law, forced a reckoning with corporate governance practices around employee innovation, and cast a spotlight on the challenges and possibilities of achieving justice in the face of immense corporate power. The final chapter remains unwritten, but the legal principles it has forged will resonate in South African boardrooms and courtrooms for decades to come.