Vodacom (Pty) Ltd v Makate and Another (4012022) 2024 ZASCA 14, 2024 2 All SA 1 (SCA), 2024 (3) SA 347 (SCA) (6 February 2024) South Africa: Supreme Court of Appeal.
Vodacom (Pty) Ltd v Makate and Another (4012022) 2024 ZASCA 14, 2024 2 All SA 1 (SCA), 2024 (3) SA 347 (SCA) (6 February 2024) Download original South Africa: Supreme Court of Appeal.
Vodacom (Pty) Ltd v Makate and Another (4012022) 2024 ZASCA 14, 2024 2 All SA 1 (SCA), 2024 (3) SA 347 (SCA) (6 February 2024) Download original files.
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA.
Case no: 4012022.
In the matter between: VODACOM (PTY) LTD APPELLANT.
KENNETH NKOSANA MAKATE FIRST RESPONDENT.
SHAMEEL JOOSUB NO SECOND RESPONDENT.
Neutral citation: Vodacom (Pty) Ltd v Makate and Another (Case no 4012022) 2024 ZASCA 14 (06 FEBRUARY 2024) Coram: MOCUMIE, SCHIPPERS and MOTHLE JJA and NHLANGULELA and KATHREE-SETILOANE AJJA.
Heard: 09 May 2023.
Delivered: This judgment was handed down electronically by circulation to the parties legal representatives via e-mail, publication on the Supreme Court of Appeal website and released to SAFLII.
The date and time for hand-down are deemed to be delivered on 06 February 2024.
Summary: Interpretation of the order of the Constitutional Court assessment of equitable compensation in a special contract test for reviewability of determination of a Chief Executive Officer (CEO) as a deadlock breaker test as formulated in Bekker v RSA Factors ( Bekker test) distinct from the test for reviewability under the Promotion of Administrative Justice Act 3 of 2000 requirements to satisfy the Bekker test high court did not apply the second leg of the Bekker test order of the high court remitting the determination to the CEO with a list of directives not sought Bekker test amplified with the caveat in Dublin v Diner Dean v Prince : reasonableness, fairness and bona fides .
On appeal from: Gauteng Division of the High Court, Pretoria (Hughes J, sitting as court of first instance): 1 Save to the extent set out below, the appeal is dismissed with costs including those of three counsel where so employed.
2 The order of the high court is set aside and substituted with the following: (a) The decision of the First Respondent delivered on 9 January 2019, determining the compensation to be paid to the Applicant by the Second Respondent, is reviewed and set aside, (b) The decision referred to in paragraph 1 is substituted with a decision that the applicant is entitled to be paid 5 7.5 of the total revenue of the PCM product from March 2001 to date of judgment by the Second Respondent, together with the mora interest thereon, alternatively interest in terms of Section 2A(5) of the Prescribed Rate of Interest Act, 55 of 1975 as amended, and that the total revenue of the PCM product shall be that set out in Model 9A, 9B 9BB submitted to the First Respondent by the Applicant (Annexure NM30 NM32 to the Supplementary Founding Affidavit) (c) It is directed that first respondent represented by the second respondent shall bear the costs of the negotiations referred to in the Constitutional Court Judgment, which costs shall include: (i) Drafting of the submissions, (ii) Preparation for and the hearing before the first respondent, (iii) Reservation, preparation and qualifying fees of experts, involved in the negotiations and hearing on an attorney and own client scale.
(d) The costs of this application are to be paid, jointly and severally, by the first and second respondents, the one absolving the other. Mocumie JA (Mothle JA and Nhlangulela AJA concurring) 1 This is an appeal against the judgment and order of Gauteng Division of the High Court, Pretoria (the high court).
The order reads: (1) The application to strike out is dismissed with no order as to costs.