‘Please Call Me’: Concourt makes a legacy ruling in the Vodacom judgment

The two-decade saga surrounding Nkosana Makate — the man who claims to have discovered the Please Call Me “idea” when he joined Vodacom as a trainee accountant — has yet to be put to bed. On , now retired Justice Mbuyiseli Madlanga handed down a significant swansong of a unanimous judgment for the Constitutional Court. In short, the court upheld Vodacom’s appeal against the fatally “flawed” majority judgment of the Supreme Court of Appeal (SCA). 

Moreover the court did not simply order that the matter be remitted to the SCA for a fresh determination. Rather, it went a (judicial) step further — one not taken before vis-à-vis another court — and ordered that the matter “be reheard

And so, this sorry saga of greed continues. Makate’s dissatisfaction with the expert chief executive’s determination of R47 million, as reasonable compensation for his “*140* idea”, lingers on. And others lament the lingering of this litigation, claiming  it “is going to be a long, long trudge towards anything that is not a negotiated settlement”. This view raises questions about the possible implications of the Constitutional Court’s finding given the rule-of-law need for finality in disputes.

Bu, there is another side to the “rule-of-law coin”; it is that of legality, a cornerstone of our democratic order. The Constitutional Court is thus to be commended on its judgment. 

The judgment is significant for five main reasons, reasons which have not yet been thoroughly ventilated in the print media. First, in Vodacom the Constitutional Court introduces a new legal basis on which to challenge the finding of a court a quo.  According to Madlanga, this new cause of action entails “a failure in the performance of what I will call a duty of proper consideration”. When vitiated

Second, it should be recalled that where there is a right, there is a remedy. And the Constitution plainly tells us that when a right has been unjustifiably breached “appropriate relief” must be granted to effectively vindicate the breach, thereby ensuring a “just and equitable” outcome. An appropriate remedy is thus an effective remedy. Given the Constitutional Court in Vodacom was faced with such staggering evidence of the SCA majority’s failure properly to consider the facts and law before it, any reasonable person would surely agree that on remittal “effective” redress in the circumstances would probably not be forthcoming from that same (grossly incompetent, and arguably, biased) SCA bench? 

This latter point raises the third aspect of the judgment. As is befitting its wide remedial discretion to grant “any order that is just and equitable”, in Vodacom the Constitutional Court fashioned a new kind of remedy —  one that accords with the new cause of action it developed. This remedy is that of remittal of the matter back to the court a quo, but on the basis that the matter be heard

Relatedly, the fourth reason the Vodacom judgment is significant lies not so much in what the court says expressly but, perhaps more importantly, in what its reasoning on the merits impliedly reveals. Reading between the lines, the court’s clever judicial reasoning tells us something specific about what it means to be a “fit and proper” judge to meet this seemingly elusive constitutional standard. 

It should be borne in mind that lacking the power of purse or the sword, the judiciary’s “meeker” power lies its “moral

The fifth reason for this judgment’s significance is therefore the following. Madlanga provides a helpful sort of litmus test for ascertaining the adequacy of judicial reasons to ensure that they “sufficiently explain how the court reached its ultimate conclusions”, while cautioning that this “test” is not an “open sesame” for litigants to participate in a “nitpicking analysis”. But, to meet the standard of “adequacy”, certain factors must be considered in the balance such that, at the very least, the “reasons are responsive to the case’s live issues and the parties’ key arguments”, and they “enable an appellate court to follow the … reasoning with a view to assessing whether [the court a quo] was right or wrong”. 

As Madlanga correctly points out, the SCA majority judgment was “thinly reasoned … characterised

Perhaps, we should therefore breathe a sigh of relief that our highest court has finally laid down some concrete, minimum criteria for judicial fitness and propriety. On this score, Madlanga notes that although proper reason-giving as an internal “check” in justifying the exercise of judicial (public) power is “closely connected” to the “duty of “proper consideration”, they are nonetheless “conceptually distinct”. This means that “unsatisfactory reasoning does not necessarily equal a failure to discharge the duty of proper consideration” and vice versa.  

So, what more does this “duty of proper consideration” require? And further, what does its substantive remit reveal about the constitutional standard of “fitness and propriety” required of our judges? The Constitutional Court judgment emphasises that the “duty of proper consideration” is based on an assessment of “the substance of a judgment viewed holistically” such that it can be said to be breached if a “reasonable, if not discerning reader” would be satisfied that thus viewed, the judgment constitutes so “flawed … an assessment … for it to cross the line” and hence amount to: (i) “a failure of justice”, (ii), “a violation of the rule of law”, and (iii) “the right to a fair hearing guaranteed in section 34 of the Constitution”. 

At the very least, the duty of proper consideration therefore requires that “a court should have regard to all material evidence and all material submissions bearing on the issues it must decide [bringing] its reasoning to bear on those material issues and [reaching] a conclusion on them”. Where this has not been done and, as such, the ensuing oversights and/or “flaws in the adjudicative process … are so fundamental and pervasive” that they “vitiate the court’s judgement”, then this amounts to a judicial breach of the duty of proper consideration. The determination thus ultimately comes down to the materiality of the court a quo’s errors and oversights — an assessment most simply explained with reference to the so-called “but for test”. In other words, but for that fundamentally, pervasive flawed reasoning, the order would not have been made.

The SCA majority in Vodacom did not even come close to fulfilling this duty of “proper consideration”. It gave no real airtime — forgive the pun — to a seriously salient issue; one which the minority, in sharp contradistinction, gave considerable attention to. The SCA majority acted beyond its jurisdiction and therefore failed to give Vodacom a fair hearing. In sum, the majority got things horribly wrong and breached the rule of law. Such an outcome is deeply worrisome. It is indicative of judicial minds being applied in a manner neither fit nor proper, and arguably also suggestive of bias — or at least the reasonable perception thereof. 

Further, it should be borne in mind that Vodacom, as a service provider of what today is properly appreciated as a basic public service (telecommunications) is, like any public company, owned

As for the Vodacom case’s players and pending (proper) outcome — we await with bated breath to see what the new SCA bench decides. This time around, we can but hope that it acts as umpire in properly upholding the standard of fitness and propriety constitutionally required of it. This standard has now been given detailed meaning through the Constitutional Court’s development of the “duty of proper consideration” coupled, but compared, with that of adequate reason-giving. We cannot “*140* please-call-me now” the SCA on this one, but we can perhaps believe the Constitutional Court’s reasoning will reverberate, such that judicial “means” do indeed ensure proper and justifiable legal “ends”.

Lauren Kohn is an advocate of the high court, the founder and director of The Law and Governance Academy of Southern Africa (LAGASA), a young research fellow of the College, University of Cape Town and a visiting research fellow of Leiden University, Netherlands.