Legacy ruling in 'Please Call Me' case

The apex court has given clarity to the meaning of 'duty of proper consideration'

- Lauren Kohn

he two-decade saga surrounding Nkosana Makate — the man who claims to have discovered the Please Call Me idea — has yet to be put to bed.

On 31 July, Justice Mbuyiseli Madlanga handed down a swansong of a judgment for a unanimous Constitutional Court. It upheld Vodacom's appeal against the "flawed" majority judgment of the Supreme Court of Appeal (SCA). But, it didn't simply remit the matter back; it went a step further, a step not taken before. The court ordered that the matter "be reheard by a differently constituted panel of judges of that court".

And so Makate's dissatisfaction with the expert chief executive's determination of R47 million as reasonable compensation for his "*140* idea" lingers on, as does its litigation, with some lamenting the "long, long trudge towards anything that is not a negotiated settlement". This may be so, but the court should still be commended for its judgment for five main reasons.

First, the court introduces a new legal basis on which to challenge the finding of a court a quo: "a failure in the performance of what ... [Madlanga calls] a duty of proper consideration". When vitiated by "fundamental and pervasive" flaws in its judicial assessment of the facts, issues and law, the court a quo will have fallen short of this standard, thereby rendering its judgment void, or "a non-decision". It is about time that this standard was spelt out by our apex court, especially when we consider some of the appalling judgments being handed down by courts lower down in the judicial hierarchy.