Vodacom (Pty) Ltd v Makate and Another

The dispute arose from Mr Kenneth Makate’s invention of the ‘Please Call Me’ (PCM) product while employed by Vodacom. In 2016 the Constitutional Court declared Vodacom bound by an agreement to compensate Mr Makate and ordered negotiations in good faith, failing which Vodacom’s CEO would determine reasonable compensation. Negotiations failed and the CEO, acting as a deadlock breaker, determined compensation at R47 million. Mr Makate challenged this determination in the Gauteng High Court on review, contending it was unreasonable and inequitable. The High Court set aside the CEO’s determination and remitted it to the CEO with detailed directives. Vodacom appealed to the Supreme Court of Appeal, contending that the High Court exceeded its powers and misapplied the applicable review standard.

The appeal was largely dismissed. The High Court’s order was set aside and substituted. The CEO’s 2019 determination was reviewed and set aside and replaced with an order that Mr Makate is entitled to 5%–7.5% of the total PCM revenue from March 2001 to the date of judgment, together with interest. Vodacom was ordered to bear the costs of the negotiations and the application, including costs of three counsel where applicable.

This judgment clarifies the reviewability of determinations made by CEOs or experts acting as deadlock breakers under contractual mandates. It reinforces the Bekker test as distinct from PAJA review and affirms that courts may intervene where such determinations are manifestly inequitable. The case is also significant in the ongoing enforcement of Constitutional Court remedial orders and in the long-running PCM litigation, finally moving the dispute closer to substantive resolution.