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When Courts Rebuke Courts: Lessons from the Concourt’s Criticism of the SCA in Makate II
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When Courts Rebuke Courts: Lessons from the Concourt’s Criticism of the SCA in Makate II

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When Courts Rebuke Courts: Lessons from the Concourt’s Criticism of the SCA in Makate II

Criticism by higher courts of lower court judgments is not new. But seldom is such criticism as sharp as the Constitutional Court’s (“Concourt”) recent censure of the Supreme Court of Appeal (“SCA”) in Vodacom (Pty) Ltd v Makate and Another (CCT 51/24) [2025] ZACC 13 (31 July 2025).

First, an orientation on the two courts.

CONCOURT AND SCA ON SA COURT LANDSCAPE

The Concourt is the highest court in South Africa. It currently has nine permanent Justices and two Acting Justices. It sits en-banc for the hearing of each case with a quorum of eight. Its jurisdiction, as determined by the Constitution of South Africa, is confined to (1) hearing and deciding constitutional matters and (2) hearing and deciding matters that raise arguable points of law of general public importance and in respect of which the Concourt has granted leave to appeal to it. What constitutes a “constitutional matter” and an “arguable point of law of general public importance” is not always clear. But that is a topic for another paper.

The SCA is the second highest court in South Africa. According to its website it presently has 24 permanent Justices and five Acting Justices. It sits in panels usually of five Justices (sometimes three) for the hearing of each case, each in one of three courtrooms on a given day. The SCA exercises general appellate jurisdiction, except in respect of labour and competition matters which are the domain of the Labour Appeal Court and the Competition Appeal Court, respectively, whose judgments can only be appealed to the Concourt.

BRIEF LITIGATION BACKGROUND TO THE DISPUTE

This case marks the second time the Concourt has ruled on the long-running dispute between Vodacom and Mr Nkosana Makate over reasonable compensation for the “Please Call Me” idea. In its 2016 judgment in Makate v Vodacom (Pty) Ltd (CCT52/15) [2016] ZACC 13; 2016 (6) BCLR 709 (CC); 2016 (4) SA 121 (CC) (“Makate 1”), the Concourt ordered Vodacom to negotiate compensation in good faith, with any deadlock to be resolved by its CEO. When negotiations broke down, the CEO offered R47 million. Mr Makate challenged this determination, and the matter has since wound through the High Court, the SCA, and now back to the Concourt nearly a decade later.

SUMMARY OF THE CONCOURT’S REBUKE

In a unanimous decision, the Concourt has delivered unusually sharp criticism of the SCA majority judgment. While it refrains from using words like “incompetence” or “dereliction”, its language leaves little doubt about its concern on this. Expressions such as “thinly reasoned,” “astounding,” “inexplicable,” and “confusing reasoning” reflect the depth of its disapproval.

Among the Concourt’s findings are:

Misattribution of findings: The SCA is said to have ascribed to the Concourt a finding that the Concourt says it never made in Makate 1.
Confusion over legal principles: The SCA is said to have been confused about the facts to which the Plascon-Evans rule applied. The rule guides how factual disputes are resolved in motion proceedings (that is, non-trial proceedings).
Misattributed concessions: The SCA is said to have attributed to Vodacom’s counsel a concession that was central to his client’s case—something the Concourt found implausible.
Failure to pronounce on key issues: The SCA is said to have summarised submissions but failed to decide the most crucial question—whether the CEO’s compensation determination was equitable or reasonable.
Failure to assess evidence: The Concourt pointed out that significant portions of evidence were either disregarded or seemingly overlooked by the SCA majority.
Granting relief not sought: The SCA is said to have granted Makate orders he had not requested through cross-appeal.
Adopting pleadings wholesale: The SCA is said to have copied directly from Makate’s Notice of Motion, resulting in imprecise relief with huge financial implications.

The detail on each of these findings is discussed below. In short, the Concourt has concluded that “the real appeal was not decided,” amounting to a failure of justice.

Lest the purpose of this paper is misunderstood, and hopefully in order to avoid unintended consequences, I should explain my purpose.

PURPOSE OF THIS PAPER

The purpose in this short paper is neither to agree nor disagree with the Concourt’s assessment of the SCA approach. To do that in a fair and meaningful way would require a reading and digestion of the entire record that was before it. That is beyond the scope of this short paper. Instead, my purpose is to highlight the Concourt’s points of criticism and then point to what I believe are the lessons that emerge from this Concourt judgment.

THE DETAIL OF THE CONCOURT’S FINDINGS

I have limited this paper to eight points of criticism of the SCA majority by the Concourt. They range from alleged failures in the treatment of evidence to confusion in reasoning, to a faulty recollection of Counsel’s submissions, to confusion on the application of the Plascon-Evans rule in motion proceedings, to a failure to decide the core issues on appeal.

The rebuke begins in earnest in paragraph 68 of the judgment. There the Concourt says:

“Unfortunately, I cannot but say that the judgment is thinly reasoned. At times it is characterised by confusing reasoning. At other times it is characterised by statements that evince a disregard for or lack of awareness of the facts and issues.”

Then follows what the Concourt says are “examples” of its concerns.

First Rebuke: Misattribution of a Finding the Concourt never made

The first rebuke is expressed as follows:

“The judgment says that Vodacom was not happy with the fact that in its 2016 judgment this Court ‘finally dealt with the matter on the 5% of ‘revenue generated’ basis’. This Court never determined a percentage. Mr Makate pushed for a 15% revenue share. This Court declined to award that. Instead, it held that reasonable compensation had to be arrived at through negotiation between Vodacom and Mr Makate, failing which it had to be determined by the CEO.”

Further, the Concourt says:

“The Supreme Court of Appeal went on to say that ‘when the CEO considered the computation, he instinctively or by design . . . fell back to Vodacom’s original stance of sharing on a 5% profit basis, contrary to the operative order’ (i.e., this Court’s 2016 order). The 5% revenue share was, in fact, agreed by the parties; that is common cause. It is unsurprising that the CEO applied it. It passes more than strange that the Supreme Court of Appeal referred to the 5% as this Court’s stipulation and, in the same breath, as Vodacom’s ‘original stance’. But the confusion relates to the source: was the source this Court’s order or Vodacom’s original stance? More strange is that later the Supreme Court of Appeal does recognise that the parties had agreed on the 5% share of revenue.”

If this assessment by the Concourt of the SCA’s approach on the question of the percentage of revenue is correct, then this suggests that the SCA majority may not have understood the issues that were decided by the Concourt in Makate 1. This has troubling implications because such an oversight may undermine confidence in the court.

Some people may say it is one thing for an Acting Judge in the high court to misconstrue a judgment of the higher court as he or she may be set right on appeal; it is quite another for the second highest court to do so on an issue so fundamental. This is because damage may be considerable – and irreversible – if the case in the SCA raises no constitutional issue or arguable point of law of general public importance such that there is no further recourse by the aggrieved party to the Concourt.

Second Rebuke: Confusion on Applicability of the Plascon-Evans rule

The second rebuke involves the application of the Plascon-Evans rule in motion proceedings. This is a subject that has tripped up many a candidate for judicial appointment at the Judicial Service Commission (“JSC”) interviews, although in this instance the question is not so much the “how” as the “when” the rule is to be applied.

The rule derives eponymously from a 1984 judgment of the appellate division of the supreme court (as the SCA was then known). Essentially, it is a tool by which the motion court seeks to resolve material factual disputes when they arise. For non-lawyers, motion court is a court where legal disputes are decided without the aid of oral evidence (opposite of a trial court) and is intended to resolve those legal disputes based on facts that are not in dispute between the litigants and are contained in court papers filed by the litigants. The essence of the rule is that it is like a referee deciding whose version of events counts when players disagree, unless one side’s story is plainly unbelievable.

The application of the rule presupposes that there are factual disputes that are material to the resolution of the legal question in issue. On this question, the Concourt says of the SCA majority’s approach:

“The majority was totally confused as to the issue or issues to which the application of the rule related. It held that the applicability of the rule did not arise at all in the appeal because the parties were agreed on the issue in respect of which the rule was raised. That issue, according to the majority, was the percentage on which the revenue share was to be pegged. That was wrong. The Plascon-Evans rule was raised in totally different contexts. That much is clear from the minority’s engagement with the subject. Indeed, it would not have made sense for Vodacom to invoke Plascon-Evans in the context of the agreed percentage at which revenue was to be shared. As a result of its confusion on the applicability of the Plascon-Evans rule, the majority failed altogether to address and decide important questions to which the applicability of the rule related. That constituted a breach of the duty of proper consideration.”

This raises a serious concern and may affect negatively public confidence in the rule of law and the courts. At the SCA level – particularly if the issues raised in a given case do not engage the Concourt’s jurisdiction and therefore the SCA is the final arbiter on those issues – failure by the court to appreciate the issues to which the applicability of the Plascon-Evans rule relate can be catastrophic.

Third Rebuke: Mis-attributed Concession

The Concourt points to a mis-attributed concession. It says:

“Yet another instance of confusion is a statement by the Supreme Court of Appeal that Vodacom’s counsel conceded that the CEO’s determination was not reasonable. One need not have been at the Supreme Court of Appeal to realise that such a concession would have been senseless. In context, that was a key question in the contest at the Supreme Court of Appeal: was the CEO’s determination reasonable? The parties adopted opposite sides on this question, with Vodacom defending the determination and Mr Makate challenging it.”

It is difficult to understand how the SCA would attribute a concession to counsel that is dispositive of his own client’s case, and on an evidential issue that is central to the appeal. However, one should note that it is not uncommon for counsel to make concessions in oral argument where making a concession is the right thing to do. After all, counsel’s duty is to assist the court, not to win a case by any means necessary. But such concessions are generally on legal points not evidentiary issues (unless the evidence is undisputed) because counsel is not a witness.

From the Concourt’s judgment, it appears that the reasonableness of the CEO’s determination was a heavily contested issue that was central to the determination of the appeal before the SCA. It is therefore unclear how experienced counsel would concede the very evidentiary issue that his client was vehemently defending. The question is why the SCA majority attributed such a concession to counsel for Vodacom if he did not make it. This may negatively affect confidence in the rule of law.

Fourth Rebuke: Failure to Pronounce on the issue before it

Continuing on that theme, the Concourt says the SCA simply highlighted the parties’ submissions on the most crucial aspect of the appeal – the Chief Executive’s determination of what is reasonable compensation for Mr Makate – without pronouncing on them. It says:

“[W]hat was crucial to the Supreme Court of Appeal’s determination against Vodacom was the question whether the R47 million awarded by the CEO was inequitable. . . The Supreme Court of Appeal obviously asked this question because it was key to Vodacom’s appeal. Vodacom was supporting the CEO’s determination in the sum of R47 million. It was thus arguing that the amount was equitable. An answer that said the amount was inequitable meant that Vodacom’s appeal had to fail. That is how crucial the question was. Crucial though the question was to the determination of the appeal, all that the Supreme Court of Appeal did was to set out the parties’ arguments in this regard without pronouncing on them. . . It was not enough merely to highlight the parties’ submissions. A shortcoming of this nature on so crucial an issue constitutes a breach of the duty of proper consideration.”

The Concourt continues:

“The matters of confusion on the part of the Supreme Court of Appeal are not mundane. They are symptomatic of a Court that did not appreciate the facts and issues it had to determine. That goes to the important question whether the Supreme Court of Appeal considered and decided all issues that were germane to the dispute before it, a matter that is fundamental to the duty of proper consideration.”

This raises a serious concern that goes to public confidence in the rule of law and how it is applied by the courts. Had Vodacom not had recourse to the Concourt, it might have suffered an enormous injustice at the hands of the SCA which, save for a possible reconsideration application, it could not redress as that would have been the final decision.

Fifth Rebuke: Failure to assess evidence

The Concourt also criticises the SCA for what it says is failure to assess evidence or of being unaware of evidence that it ought to have assessed. The substance of the criticism is this:

“[I]n paragraphs 6.1-6.8 of his determination, the CEO dealt with evidence on ‘PCM revenue in the context of Vodacom’s voice revenue’. He dealt with the evidence extensively. As part of this, he referred to calculations of voice revenue in one of Mr Makate’s models and said those calculations or estimates ‘need to be carefully examined’. The Supreme Court of Appeal said that this word of caution or conclusion was expressed ‘without saying why’. The truth is that in the same sentence in which this quote appears, the CEO continued and said that this is so ‘because if [the estimates] are inconsistent with the publicly available financial data, the model would be discredited’. The CEO did not end there. He proceeded to deal with the subject and to explain himself fairly extensively in paragraphs 6.4-6.14.

He concluded that – on Mr Makate’s calculations – PCM revenue made up more than 80% of Vodacom’s total mobile voice revenue, and in five of those years, more than 90%. In paragraph 6.5 the CEO said that Mr Makate’s figures thus suggested that an overwhelming percentage of Vodacom’s voice revenue was generated as a direct result of PCM. This, according to the CEO, ignored many other variables which went into generating revenue for a telecommunication operator, namely: investment into the network; other products and services offered by Vodacom; growth in customer numbers; and growth in spend by existing customers. He concluded that the numbers in the model used by Mr Makate were unrealistic and on this ground alone no reliance could be placed on the model. In paragraphs 6.6-6.14 he proceeded to do an in-depth analysis of Mr Makate’s model, identifying where, in his view, it had gone seriously wrong.

Mr Makate contested Vodacom’s voice revenue figures that the CEO used in the analysis set out above, and a great deal of evidence from the parties was adduced on this aspect. In his explanatory affidavit the CEO substantiated his reasons for rejecting Mr Makate’s models in no fewer than 27 paragraphs.

With all this in mind, it is difficult to comprehend how the Supreme Court of Appeal came to the conclusion that what the CEO had said was unexplained. The Supreme Court of Appeal was either not aware of the CEO’s explanation or disregarded it. Whatever the position, its conclusion is inexplicable.”

This has troubling implications for public confidence in the rule of law and our courts.

Sixth Rebuke: Disregard for and Lacking Awareness of Evidence

The Concourt says the following on this score:

“I say disregarding when, in fact, it may well not even have been aware of the evidence. The Supreme Court of Appeal said that it could find no objection by Vodacom to Mr Makate’s models on compensation similar to that of a third-party service provider. In similar vein, the Supreme Court of Appeal said that ‘absent any evidence that Mr Makate’s computation is wrong . . . I can find no reason why Mr Makate’s computation should not be accepted as correct’. This is astounding.

First, Mr Makate’s models, which the Supreme Court of Appeal says were not objected to by Vodacom, concerned the hotly contested issue of the computation of compensation. Why would Vodacom have appealed at all if it was not contesting Mr Makate’s models? Unsurprisingly, Vodacom submits that ‘[t]he entire debate in [the Supreme Court of Appeal] turned on the question whether the models presented by Mr Makate or those of the CEO should be preferred’. In what is a clear demonstration that Mr Makate’s models were at issue, the minority engages with this debate at great length in paragraphs 62–202.

Second, with all this in mind, how could the Supreme Court of Appeal say that evidence that Mr Makate’s computation was wrong was absent? In argument before us, Vodacom cites examples of the issues that it addressed countering Mr Makate’s models and, therefore, computation. It does so with reference to the CEO’s determination. These examples were: PCM volumes; incremental revenue; call duration; effective call rate; duration of the contract; and mora interest and the time value of money.

How – in the face of all of this – the Supreme Court of Appeal held that it could find no objection to Mr Makate’s models and that there was no evidence that his computation was wrong escapes me. This is a very fundamental issue because the computation is what the entire litigation was about. This means the Supreme Court of Appeal was unaware of or disregarded evidence on what the entire case was about. If that is not a total failure in the performance of the duty of proper consideration, I do not know what is.”

This has serious implications for sustained confidence in the court and the rule of law.

Seventh Rebuke: Granting Relief not Sought

The Concourt rebukes the SCA for its “apparent readiness . . . to accept whatever Mr Makate said” and going as far as granting him relief he did not seek. In this regard, the Concourt says:

“I cannot conceive of any basis on which Mr Makate was – as the Supreme Court of Appeal seems to suggest – automatically entitled to whatever he asked for. The Supreme Court of Appeal makes this bald statement without explaining it. It also seems to have given no consideration to the fact that, in granting Mr Makate what he wanted – under paragraph 2(b) of its order – it was granting an order which had not been sought by way of cross-appeal and was thus not properly before it. . . It may well be that in the end Mr Makate will get what he is asking for. But that is a conclusion which must be reached after a proper consideration of the issues.”

The Concourt then says:

“It is at variance with a fair hearing for a court to decide an issue that has not been pleaded and which the affected party was not called upon to answer…

. . .

By deciding a case that was not before it, the Supreme Court of Appeal deprived Vodacom of the opportunity to make submissions on whatever issue it might have been minded to on the possibility of a substituted order.”

This raises a serious concern with implications for the public’s confidence in the rule of law and the court.

Let us take a step back to reflect on the Concourt’s own conduct in this regard. I do so not as criticism but as a reminder that this is an important adjudicative issue that our courts across the hierarchy spectrum need to address.

In Tasima, Justice Zondo was critical of the majority both for failing to follow precedent (stare decisis) and for granting an order that was not sought. In his concurring judgment, he felt it necessary to express himself as follows:

“In Maphango I pointed out in my minority judgment that the majority judgment was granting the applicant relief that it had not asked for. In Bel Porto, a decision of this Court, Chaskalson CJ, writing for the majority, had made it clear that it was not permissible to grant a party relief that it had not asked for. I highlighted this in my judgment. The majority went ahead and granted the applicants relief that they had not asked for and, in this way, did not follow Bel Porto. Mogoeng CJ and Jafta J concurred in my judgment. . .

In KwaZulu-Natal Joint Liaison Committee the majority decided the matter in favour of the applicant on a basis that was not part of the applicant’s case as set out in its founding affidavit. They did this despite the fact that, during the hearing, Counsel for the applicant had repeatedly disavowed any reliance on the basis relied upon by the majority judgment to grant the applicant relief. Deciding the matter on a basis that fell outside the applicant’s founding affidavit went against the rule of practice that in motion proceedings a party stands or falls by its papers. In my minority judgment I highlighted the fact that there were a number of decisions of this Court that had affirmed this rule of practice. Mogoeng CJ and Jafta J concurred in my judgment.

The majority judgment went against those decisions. On that occasion . . . neither the majority judgment nor the separate judgment advanced any of the grounds recognised in law as justifying not following a precedent. There may be more cases to add here but it is not necessary to do so. Both in Maphango and KwaZulu-Natal Joint Liaison Committee the result would have been different if, in the case of Maphango, Bel Porto had been followed and, in the case of KwaZulu-Natal Joint Liaison Committee, Bel Porto and other decisions of this Court had been followed.”

The point is that the tendency of our courts to grant orders that have not been sought, and to disregard precedent, seems to have plagued even the highest court and needs to be addressed and rooted out. The question is by what means this can be done when the apex court itself is not immune to this temptation which, according to the Concourt, evinces a failure of justice.

Eighth Rebuke: Uncritical Copying of Notice of Motion into Court Order

Before highlighting the Concourt’s criticism of the SCA majority’s copying of Mr Makate’s Notice of Motion into its order, I wish to highlight another growing practice of courts simply adopting large swathes of the heads of argument filed on behalf of one party and present that as the judgment. This is not judging. It is a failure to fulfil a judicial function. The Concourt has criticised this approach – albeit mildly – in, for example, Stuttafords v Salt of the Earth Creations. It said:

“On analysis, it appears that the judgment consists of approximately 1890 lines of typing of which, apart from a summary of the relief sought and the terms of the order, only approximately 32 lines are the judge’s original writing. The rest consists of words taken exactly from Salt’s counsel’s heads of argument, sometimes even without taking out phrases like ‘it is submitted’, and emotive comments on The Gap and Stuttafords’ contentions and actions. There is no direct independent reference in the main judgment to The Gap and Stuttafords’ heads of argument, except for references carried over from Salt’s heads of argument. . .

. . .

While some reliance on and invocation of counsel’s heads of argument may not be improper, it would have been better if the judgment had been in the judge’s own words [because]

‘[t]he true test of a correct decision is when one is able to formulate convincing reasons (and reasons which convince oneself) justifying it. And there is no better discipline for a judge than writing (or giving orally) such reasons. It is only when one does so that it becomes clear whether all the necessary links in a chain of reasoning are present; whether inferences drawn . . . are properly drawn; whether the relevant principles of law are what you thought them to be; whether or not counsel’s argument is as well founded as it appeared to be at the hearing (or the converse); and so on.

The very act of having to summarise in one’s own words what a witness has said, or what is stated in an affidavit or what a document says or provides, is in itself a very good discipline and is conducive to a better and more accurate understanding of the case.’

These remarks were made by a former Chief Justice, Corbett CJ, in an address at the first orientation course for new judges under the new constitutional dispensation. We have deliberately refrained from dealing with case law on the issue whether the extensive use of counsel’s heads could lead to a perception of bias, because it is not a question we need to decide here. Suffice to state, however, that if these wise words are heeded by judges the necessity of deciding the issue in the future should not arise.”

The practice of a court’s wholesale adoption of one party’s heads of argument and presenting that as its own judgment is to be sternly discouraged. The Concourt’s mild criticism of this practice does little to discourage this troubling abdication of judicial responsibility.

This practice appears to have emerged again in this Makate II case. This time, says the Concourt, the SCA “simply copied paragraph 2 of Mr Makate’s High Court notice of motion verbatim, thus incorporating the revenue-sharing range of 5%-7.5% and the two alternative forms of interest.” The Concourt continues:

“If the Supreme Court of Appeal had properly considered the relief, it would have realised that – although a litigant can claim relief across a range or in the alternative – a court has to fix the relief with precision. As previously mentioned, the range and alternatives resulted in huge monetary differences.”

Concourt’s conclusion

The Concourt’s conclusion is biting and raises serious concerns that may affect confidence in the courts and the rule of law:

“To conclude, the evidentiary matters and legal questions highlighted above and which the Supreme Court of Appeal disregarded or of which it was unaware or on which it was confused were key to the determination of the contest between the disputants. The confusion or disregard or lack of awareness of the evidence and arguments led to the Supreme Court of Appeal not assessing and deciding on central issues and crucial evidence. As indicated above, it cannot do that. To put it bluntly, the real appeal was not decided. That constituted a total failure of justice in breach of the rule of law and the fair hearing right protected in section 34 of the Constitution.”

So, what lessons can we learn from this Concourt judgment?

LESSONS

The criticisms levelled by the Concourt on the SCA majority in Makate II raise serious concerns. As noted, the Concourt has itself been criticized by at least one of its own for not following precedent and granting relief based on an unpleaded case. In my view, some of the lessons that arise from this case include the following.

Judicial fallibility: Judges are human and therefore prone to error. However, mistakes at appellate level can cause immense harm, especially when no further appeal is possible. The human element can also involve judges infusing their judgments with their own world outlook or personal convictions on specific issues. While it is impossible to tell merely from reading a judgment (unless the Judge expressly says so or there are sufficient indicators of this in the judgment), allowing one’s personal convictions to dictate the outcome of a case is a human frailty of which judges must be aware, confront and remove from their adjudication process, not deny.
Accountability: South Africa lacks a mechanism for compensating litigants harmed by judicial errors or judicial abdication, especially at appellate level. This is an area that may require some exploration.
Duty of proper reasoning: Courts must decide the issues before them and explain their reasoning. Wholesale adoption of one party’s submissions or granting relief not sought undermines confidence in judicial independence.
Consistency and precedent: The tendency of courts to depart from precedent or grant unpleaded relief has drawn criticism even within the Concourt itself. Strengthening judicial discipline in this area is vital.
Bias and perception: While allegations of bias are difficult to prove, judgments that appear to uncritically accept one party’s position risk creating perceptions of partiality that can erode trust in the judiciary. Also, judging through or under the influence of personal convictions and preferences on socio-economic, socio-political or moral issues is a betrayal of the oath of office that all Judges take or swear when appointed. By that oath, all Judges swear “that, as a Judge . . . I will be faithful to the Republic of South Africa, will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law.” However objectively noble or popular a Judge’s personal convictions or world outlook or preference of the outcome of a case, his or her duty as a Judge – paying fealty only to the Constitution, including his or her oath of office, and the rule of law – is to render a judgment that is rooted in the undisputed (or proven) facts and application of the current law to those facts. Some may say that judging through the lens of personal conviction or socio-political or moral or socio-economic preferences renders one fit for politics and the NGO “pressure group” space, not the Judiciary.

CONCLUSION

The Concourt’s sharp rebuke of the SCA in Makate II is unprecedented in tone and seriousness. It is also an opportunity to reflect on judicial accountability, transparency, and the importance of careful reasoning in protecting the rule of law. While courts must retain independence, they must also remain alert to how lapses in judgment or process affect litigants, public confidence, and the legitimacy of the judiciary itself.

*** The End***

By AnchoredinLaw|2025-08-28T03:23:53+02:00August 27th, 2025|Analyses and Reviews|Comments Off

The State of South Africa’s Constitutional Democracy: A Practising Lawyer’s Perspective
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The State of South Africa’s Constitutional Democracy: A Practising Lawyer’s Perspective

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The State of South Africa’s Constitutional Democracy: A Practising Lawyer’s Perspective

In this opinion piece I share my perspective about the state of South Africa’s constitutional democracy as an advocate who practises in all the higher courts of South Africa. Indeed, I thank the avalanche of turgid reaction to Minister Lindiwe Sisulu’s take on the same issue this past week.

While I shan’t engage with the content or even merits of what strikes me as Minister Sisulu’s political manifesto, and the cacophony of squeals and meandering political rhetoric that followed it, I think an opportunity has arisen for practising lawyers to express their views, individually and from personal experience, on the state of South Africa’s fabled constitutional democracy. In a constitutional democracy, lawyers should be free to express their views on this issue free from fear of victimisation by those who control the purse strings of legal work in government and elsewhere. After all, those of us who practise in the courts experience the impact of the Constitution directly at the level that matters most: the judicial adjudication of contesting rights.

I accept that Minister Sisulu has been part of the executive that has failed to deliver her party’s promise of “A Better Life for All”. However, my focus is not the messenger and her track record; it is an aspect of her message.

I accept also that there are some heart-warming good stories to tell about the successful invocation of some provisions of the Constitution in the highest court. But these should not be allowed to drown out the shrill cry of probably hundreds of thousands, if not millions, of South Africans who still, despite the Constitution, suffer the indignities of race and gender unfair discrimination. They are my focus in this opinion, as hardly anyone ever genuinely speak for them without exerting some mileage – whether political or economic – for themselves.

My thesis is this: The Constitution is a document with lofty ideals and aspirational virtues. It is not a panacea to all societal ills. For example, equal protection and benefit of the law (s 9) is a virtue to which we all aspire, not one we all possess. One need only look at how selective the application of the law has been, and continues to be. Some people are persecuted by organs of state and publicly pilloried on mere allegations of wrongdoing. Examples include Mr Matshela Koko (former Acting Chief Executive at Eskom) who is being relentlessly pursued under the guise of “state capture” but in truth seemingly for doing his job at Eskom which, to the chagrin of people in positions of power and their benefactors, meant lost opportunities for pilfering at the state power utility. Admissible evidence of criminality against him I am yet to see. Whether it will come is anyone’s guess.

Others seem protected even after a forensic investigation points to possible defalcation. Examples in this category include former Minister of Health.

The President himself has been implicated at the State Capture Commission in facilitating “state capture”. Yet, not so long ago, the President officially received (and is scheduled to continue receiving) the State Capture Commission Report in tranches as President. He will decide what recommendations made in the Report to accept and which to ignore or reject. But what of the allegations that the President may have facilitated the very conduct that the State Capture Commission was established by the former President to investigate?

Let’s remind ourselves:

The evidence was that Mr Ramaphosa was chairman of the board of directors of Optimum Coal Holdings (OCH) from 26 March 2012 until 22 May 2014. He held a 9.64% shareholding (via the Lexshell company) in OCH and through its subsidiaries, including Optimum Coal Mines (OCM). OCH had provided a parent company guarantee to Eskom to step in if OCM was not able to perform its obligations in terms of the OCM Coal Supply Agreement (CSA). Mr Ephron, OCH and OCM CEO at the time, told the State Capture Commission that Mr Ramaphosa divested his entire interest in OCH on 22 May 2014. At that stage, the Eskom penalties claims against OCM for the supply of sub-optimal coal in breach of terms of the CSA amounted to over R1.4 billion. Mr Ramaphosa had an association with Glencore and its public representatives for a number of years. In his statement to the Commission, he referred to it as a long-standing relationship that started in 2005.

Between March 2012 and May 2014 OCM failed to pay to Eskom the coal penalty claims of over R1,4 billion. The President (still Mr Ramaphosa then) resigned as a director and Chairman of OCH in May 2014 to take up Deputy-Presidency of the country under President Zuma on 25 May 2014.

Between June 2014 and May 2015 the coal penalty claims that were not paid to Eskom by Glencore’s Optimum Mine increased by R740,000 000 to R2.17 billion from R1 431 429 719.

In July 2015 Eskom served Combined Summons on OCM and OCH, claiming payment of the R2,17 billion coal penalties. OCM and OCH elected to go into business rescue rather than deal with the summons in court. They also avoided going through the arbitration proceedings as provided for in the CSA. They demanded that Eskom scrap the R2.17 billion. Eskom refused. The Business Rescue Practitioners elected to sell the business to Tegeta. Glencore claimed that Eskom pressured them to sell by refusing to scrap the R2.17 billion penalties that were rightfully due to Eskom.

In January 2018, Mr Ramaphosa (who had been Chairman of OCH just over 3 years previously and held a substantial shareholding in the company) was now head of government business and Deputy President of the country and of the ruling party. In that capacity, so the evidence goes, he sent an instruction to the Department of Public Enterprises to appoint a new Eskom board and for the new board that was yet to meet to dismiss Mr Koko and other executives. The Labour Court set aside that decision. Mr Koko remained dismissed nonetheless.

That, in my view, is the state of our constitutional democracy.

There is more. The President told the State Capture Commission, under oath, that the ruling party’s deployment committee did not discuss recommending candidates for judicial appointment. It has now reportedly emerged from minutes of the ruling party’s deployment committee that it did. That, by definition, would ordinarily constitute perjury and a serious violation of the law and the Constitution by a sitting President. But, will the President be hauled before Parliament to account to us on pain of a vote of no confidence or, possibly, impeachment? Will the State Capture Commission Report make any recommendation about what appears to be Presidential mendacity under oath? In light of this revelation, will the Acting Chief Justice (and, indeed, the Judiciary and the organised legal profession) still find it appropriate that a President seemingly compromised in this way should still receive the Commission’s Report and be the one who decides which recommendations to accept or reject?

The answers to these questions will further reflect the state of South Africa’s constitutional democracy. It is not the Constitution that is to be judged. Rather, it is to the institutions that have been put in place to give effect to its lofty ideals that we should look: Parliament. The Judiciary. The Executive (Cabinet). Will they fail South Africans once again?

People wax lyrical about a Constitution that guarantees the right to human dignity (s 10), yet we see black graduates at traffic intersections begging for work, any form of work, to make ends meet, alongside decent ordinary South Africans begging for food with toddlers in tow. Whose dignity is contemplated in s 10 if not that of the most vulnerable among us? We extol the virtues of a Constitution that guarantees the right not to be detained without trial [s 12(1)(b)], yet countless numbers of black people who cannot afford bail or effective legal representation for “poverty crimes” like theft of food, or items intended for sale in order to buy food, languish in South Africa’s gaols. Is the right not to be detained without trial guaranteed only for those who can afford a lawyer, or for those lucky enough to be assisted by Legal Aid SA?

We have a Constitution that guarantees freedom of association (s 18), yet “cancel culture” forces people out of business and employment merely for being perceived as being associated with persons of whom the establishment does not approve. Is this freedom reserved only for pre-approved association?

That is the state of South Africa’s constitutional democracy.

We have a right, in theory, to freedom of thought, conscience, belief and opinion [s 15(1)], yet the legal profession seems unperturbed by a provision in the covid-19 regulations that criminalises the expression of a view on covid-19 that contradicts the government’s official position, subject only to the cynical caveat that the view expressed must be intended to mislead. But “intention” can only be determined by the criminal court after criminal prosecution has already been instituted; and so the caveat is open to abuse.

That is the state of South Africa’s constitutional democracy.

The President is talking of plans to force (euphemistically termed “mandate”) people to take injections of what some experts regard as experimental, in order to, apparently, “save lives”, yet there is no evidence that vaccination prevents transmission of the covid-19 virus, or that it prevents death from covid-19 complications, or that vaccination prevents hospitalisation from severe covid-19 effects. We are now told that vaccination “reduces” chances of infection, or hospitalisation or death. If one dares ask basic commonsense questions about the rational connection between compulsory vaccination and so-called “vaccine passports”, on the one hand, and the information that is available as regards the provenance and purpose for which these things are intended, one tends to be “cancelled” and labelled “anti-vaxxer” or “flat-earther” or “anti-science” or “covidiot” and more.

This is the state of South Africa’s constitutional democracy.

The former Chief Justice spoke out, outside the courtroom, on matters of corruption involving the state and private sector. He also expressed religious and other views on matters of state involving Israel. For that he was pilloried and, for the latter, ultimately censured by the Judicial Conduct Committee for “becom[ing] involved in political controversy or activity, in breach of Article 12 (1) (b) of the Code [of Judicial Conduct]”. The former Chief Justice appealed against the censure. Contrastingly, the Acting Chief Justice speaks out, outside the courtroom, in response to a politician’s tirade about matters of state involving the role played by a demographic of the judiciary as she sees it. He is commended, including by a retired Justice of the Constitutional Court. There is no complaint to the JSC of which I am aware that the Acting Chief Justice has “become involved in political controversy or activity in breach of Article 12 (1) (b) of the Code”. How can there be, when a retired Justice of the Constitutional Court and an association of advocates have already lent credibility to what some consider a political intervention by the Acting Chief Justice?

That is the state of South Africa’s constitutional democracy.

There is another serious consideration. Before his public excoriation of a politician for doing what politicians generally do (namely, shoot from the hip for political mileage), did the Acting Chief Justice stop to consider his position (and that of the Judiciary he leads) if Minister Sisulu’s political outburst against a demographic of the Judiciary were to give rise to litigation which engages the politician’s right to freedom of thought, belief, conscience and opinion (s 15) and her right to freedom of expression (s 16), which ultimately ends up in the higher courts, including the Constitutional Court? How impartial can ordinary South Africans expect the courts to be in their determination of a case when the leader of the Judiciary, publicly supported by a retired Constitutional Court Justice and an association of advocates, has already publicly pronounced his aversion on behalf of the Judiciary?

That is the state of South Africa’s constitutional democracy.

Not so long ago, another politician (the Minister of Transport) referred to the State Capture Commission on which the Acting Chief Justice presides as “the place where people go to urinate”. Yet another politician (leader of the third largest party in Parliament) launched an extraordinary broadside at the entire judiciary when he said: “There is gross incompetence at the highest level of the judiciary, starting with the incompetent Acting Chief Justice, Zondo … We are not going to be afraid to talk about incompetent judges of the Constitutional Court who take four months to resolve an urgent matter”. He made this statement seemingly oblivious of how the Constitutional Court goes about its business of judgment consideration and writing. (Clearly he had not watched an episode of this publication under “Judicial Voices” where Justices of the Constitutional Court explain the process). I am not aware of scarcely the sort of outrage we are now witnessing against Minister Sisulu’s tirade from the Acting Chief Justice in defence of the Judiciary.

That, in my view, is reflective of the state of South Africa’s constitutional democracy.

Some large white firms win tenders from state-owned enterprises with the assistance of small black firms and then, on the award of the contract, either terminate the partnership or (playing one black firm against another in their pursuit of bread crumbs falling from the master’s table) replace the original black firm with another small black firm to which it pays lesser revenues than those agreed with the original black firm. On the rare occasion when the termination is challenged in court, all manner of technical points are often raised with the specific purpose of draining the financial resources of the small black firm and, with that, its resolve to fight. In cases of this kind – economic transformation cases – our courts have tended in my experience rather to go with form over substance, technical niceties over justice. Having ruled that former Chief Executive of Vodacom lied when he claimed to have invented a technological application that had in fact been invented by a young black man, why did the Constitutional Court not make a finding in favour of the young black man and award him his claim instead of sending the matter for determination of the amount of damages to be paid back to the Chief Executive of the very company with which the young black man is in dispute? Although this had been the contractual bargain made by the parties themselves, the manner in which Vodacom litigated this case, as lamented by the Constitutional Court itself in its judgment, called for a measure of judicial activism in the interests of justice and in pursuit of a goal higher than a common law sanctity of contract: equity and constitutional redress. An opportunity was lost to develop the common law in a case that cried out for it.

The court’s concluding remarks in Makate v Vodacom are worth reproducing to demonstrate the opportunity lost:

“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. No smile was brought to his face for his innovation. This is besides the fact that Vodacom may have been entitled to raise the legal defences it advanced. As a party, it was entitled to have its day in court and have those defences adjudicated. This is guaranteed by section 34 of the Constitution. However, it is ironic that in pursuit of its constitutional right, Vodacom invoked legislation from the height of the apartheid era, to prevent the applicant from exercising the same right.

In not compensating the applicant and persisting in advancing the legal defences even after the trial Court had emphatically found that an agreement was concluded, Vodacom associated itself with the dishonourable conduct of its former CEO, Mr Knott-Craig and his colleague, Mr Geissler. This leaves a sour taste in the mouth. It is not the kind of conduct to be expected from an ethical corporate entity.”

An opportunity was, indeed, lost to develop the common law for the sake of justice, equity and the pursuit of equal protection and benefit of the law as enshrined in the Constitution that we so lavishly celebrate. What is the point of all these lofty constitutional values if our courts are not prepared to stretch their imagination in pursuit of them in cases that cry out for such intervention against a litigant of the kind the Constitutional Court describes in this passage?

That is the state of South Africa’s constitutional democracy.

We have a provision in the Constitution that demands that organs of state implement a procurement policy that favours the advancement and protection of persons disadvantaged by unfair discrimination and the procurement of goods and services from categories of persons disadvantaged by unfair discrimination. Yet the legislation that Parliament enacted in order to give effect to that constitutional provision forces black and women owned firms to compete on equal footing with established white firms on price, knowing full well the impossibility of that competition. In the result, the preferential procurement constitutional provision is an empty promise.

That is the state of South Africa’s constitutional democracy.

In order to give effect to broad-based black economic empowerment as provided for in s 217(2) of the Constitution, Parliament enacted the Broad-Based Black Economic Empowerment Act. But in reality, black people buy shares in existing white companies through new companies with huge loans obtained from banks and other finance institutions to be repaid over time from the appreciation of the share price. The shares are used as guarantees for the repayment of the loan and if the share price should fail to appreciate sufficiently to cover the amount of the loan within the period of the loan, the shares are forfeited to the bank or finance institution that provided the loan. And our courts have ruled that the white company, even though the shares are no longer in black people’s hands, remains “empowered”.

That is the state of South Africa’s constitutional democracy.

In a case where a woman raped by 3 on-duty policemen sought damages against the Minister of Safety and Security, both the High Court and the Supreme Court of Appeal dismissed her claim saying the Minister was not vicariously liable for the conduct of the 3 policemen. The woman had accepted a lift from the 3 policemen after she had found herself stranded in the early hours of the morning. Instead of chaperoning her to safety, the 3 policemen took turns to rape her, and the High Court and Supreme Court of Appeal denied her damages against their boss. Had it not been for Justice Maya’s lone voice on that SCA bench, the case would likely not have attracted the attention of the Constitutional Court and reversed. Had the woman no funds, or her legal team discouraged by the loss in 2 courts, our judiciary would have failed her. How many similar incidents of unresourced women go unreported almost everyday?

That is the state of South Africa’s constitutional democracy.

The controversy surrounding Minister Sisulu’s political assessment of South Africa’s constitutional democracy provides an opportunity for us all in the country – especially lawyers – to take stock of our constitutional democracy, assess how far we have come with it, subject it to stringent review of its shortcomings through public dialogue, come to grips with the failures of implementation of its lofty ideals, and chart a new path if our review should reveal that the fortunes of a more prosperous, egalitarian South African society lie elsewhere.

That begins with discouraging “thought policing” and censorship of socio-political views that do not find favour with some powerful forces in society. No one should have monopoly of thought or conscience or thought leadership in a constitutional democracy. Everyone should be free to express an opinion about the state of South Africa’s constitutional democracy, however unpalatable or even outrageous it may appear to some of us, subject only to the strictures provided for in the Constitution itself: incitement of violence, propaganda for war and advocacy of hatred. Absent any of these, there should be no censorship of free speech whether by a politician, a Judge, a vagrant, a civil servant, a practising lawyer, or any ordinary citizen concerned about the direction his or her country is taking.

That is what the state of South Africa’s constitutional democracy should be.

By AnchoredinLaw|2025-01-15T10:12:34+02:00January 16th, 2022|Blog, General, News|3 Comments