The South African Constitutional Court has recently been dominating news headlines globally. As the highest court in the country, the Constitutional Court only has jurisdiction to preside over matters that raise concerns around the application and/or interpretation of the constitution. The Court has handed down judgments of two high profile cases in the past two months; one with high-level political implications, and the other closely tied to the country’s economic elite. Both cases resulted in scathing verdicts against both the political and industrial powerhouses of the country.

Makate v Goliath: Protecting the Economic Underdog

On 1 September 2015, the Constitutional Court heard an appeal, via the Supreme Court of Appeal, from the Gauteng Local Division of the High Court in the matter of Makate v Vodacom (Pty) Ltd (CCT52/15) [2016] ZACC 13. The case has been an ongoing legal battle since 2008 and centered around the existence, or otherwise, of a contract between the parties relating to a business idea, the now ubiquitous ‘Please Call Me’. The “Please Call Me” is a service available to customers of Vodacom; one of Africa’s leading mobile communications companies. The service allows prepaid users to send a free sms to other users, requesting the recipient of the sms to ‘please call’ the sender back.

Makate had always alleged that the idea originated with him and that, despite it probably not being patentable in that it might have been considered as purely a business idea - which is not protectable as statutory IP -; there was a contract which entitled him to compensation from his erstwhile employers, Vodacom.  Additionally, there was no contract of employment or other agreement requiring him to assign all IP to Vodacom during his employment with the company. Vodacom in turn had denied that he had conceived of the idea, despite publicly praising Makate for the idea in 2001. Even more shockingly, the company’s former chairman went as far as to allege in his memoirs that the idea had been his own. In addition, the company alleged that any claim, if the court found there was one, had prescribed.

Vodacom failed on both counts and the court concluded that the company acted unethically in not compensating Makate for his idea. As stated in the judgment handed down on 26 April 2016 by Judge Jafta, “The stance taken by Vodacom in this litigation is unfortunate. It is not consistent with what was expected of a company that heaped praises on the applicant for his brilliant idea on which its “Please Call Me” service was constructed. The service had become so popular and profitable that revenue in huge sums of money was generated, for Vodacom to smile all the way to the bank. Yet it did not compensate the applicant even with a penny for his idea.”

The rather scathing verdict against Vodacom came just more than a month after the Constitutional Court found that the President of South Africa, Jacob Zuma, had failed to uphold, defend and respect the constitution; which is a constitutional obligation as President, as stipulated in section 83 (b) of the Constitution.

The People v The President: A Political Win for South Africa

In Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11, the Constitutional Court heard a case brought forward by two opposition political parties, the Economic Freedom Fighters (EFF) and the Democratic Alliance (DA). This after the President, and the National Assembly, failed to comply with remedial actions prescribed by the Public Protector; an institution that protects constitutional democracy, as stipulated under Chapter Nine of the Constitution. The remedial actions prescribed related to the unduly gained benefits received by the President and his family from the non-security upgrades at his homestead in Nkandla; which were constructed at state expense. The non-security upgrades included the building of a chicken run, a swimming pool, a cattle enclosure, an amphitheatre and a visitor’s centre. The remedial actions included the requirement that the President personally pay back a reasonable portion of the money spent on non-security upgrades.

After receiving the Public Protector’s report, President Zuma commissioned the Minister of Police to run a parallel investigation into whether he was personally liable for any costs associated with the non-security upgrades at Nkandla. Not surprisingly, the Minister of Police, a member of the executive branch of government, exonerated the President from any wrong-doing, and claimed the president was in fact not liable for any costs linked to the upgrades. The National Assembly – the legislative branch of government - later arrived at the same conclusion through the findings of an ad hoc committee. This despite the fact that only the judicial branch of government is lawfully permitted to excuse the President of any liability deriving from a constitutionally sourced decision, as is the case with remedial actions prescribed by the Public Protector.

The matter brought before the Court thus related to a number of public concerns. These include the abuse of state power and resources, and the breakdown in the separation of powers between the three branches of government. Most importantly; clarification was sought over the constitutional powers of the Public Protector, specifically with regards to the binding nature of her remedial actions.

In the judgment handed down on 31 March 2016, Judge Mogoeng claims that “It has been suggested, initially by both the President and the National Assembly, that since the Public Protector does not enjoy the same status as a Judicial Officer, the remedial action she takes cannot have a binding effect”. Under the backdrop of the above described circumstances, the EFF and DA sought to clarify whether remedial actions taken by the Public Protector were in fact binding.    

The Judgment given by Judge Mogoeng was damning in its statements against the conduct of the President and the National Assembly. As stated on page 48 of the judgment, “In principle, there may have been nothing wrong with those “parallel” processes. But, there was everything wrong with the National Assembly stepping into the shoes of the Public Protector, by passing a resolution that purported effectively to nullify the findings made and remedial action taken by the Public Protector and replacing them with its own findings and ‘remedial action’. This, the rule of law is dead against. It is another way of taking the law into one’s [own] hands”. The court found that “the National Assembly’s resolution based on the Minister’s findings exonerating the President from liability is inconsistent with the Constitution and unlawful.” Additionally, the court found that the Public Protector’s remedial actions were binding on the President, and subsequently ordered the President to ‘pay back the money’.

 As Judge Mogoeng stated in the judgment, “One of the crucial elements of our constitutional vision is to make a decisive break from the unchecked abuse of State power and resources that was virtually institutionalised during the apartheid era”. The judgment handed down in this case has upheld the ideals embodied in the country’s constitution, and has proven a win for the rule of law. The separation of powers has been clearly delineated in this instance; as the judiciary operates to keep accountability and democracy alive in the country.

Similarly, the matter of Makate v Vodacom has proven that the constitution’s reach extends into all spheres of law, and can be used to defend the intellectual property rights of South Africans. In many instances, the financial power of a party heavily sways the ability to fight against, or for, a case. Despite taking on one of Africa’s largest mobile communications companies, Makate’s constitutional rights were upheld, and the underdog emerged victorious.

It has thus been heartening to see the Constitutional Court protecting the public and coming out strongly in condemnation of those who fail to uphold the values of the Constitution, be they begrudging politicians or powerful captains of industry.


The full judgments can be accessed via the links below:

1. Makate v Vodacom (Pty) Ltd [2016] ZACC 13:

2. Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11: