Makate v Joosub NO and Another (57882/19) [2020] ZAGPPHC 248 (30 June 2020)

Makate v Joosub NO and Another (57882/19) [2020] ZAGPPHC 248 (30 June 2020)

The court held that Rule 53 applies to the determination made by the first respondent, as the process resembled that of a domestic tribunal and was underpinned by principles of fairness and reasonableness. However, the documents sought by the applicant were not considered by the first respondent and thus do not form part of the Rule 53 record. The court found that Rule 35(14) may be invoked in applications where the issues are clearly defined and the documents sought are relevant to reasonably anticipated issues in the main review. The court granted the applicant access to specified VAS contracts and underlying financial data used to calculate voice revenue, as these are central to the...

Citation
[2020] ZAGPPHC 248
Parties
Applicant: Nkosana Makate; Respondent: Shameel Joosub N.O.; Respondent: Vodacom
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
30 June 2020
Case Number
57882/19
Procedural Posture
Interlocutory Application / Application for Discovery and Supplementation of Record in Rule 53 Review Proceedings
Outcome
Application granted in part: relief against the first respondent refused; relief against the second respondent granted for specified contracts, underlying financial data, and a confidential portion of the KPMG report; costs awarded to the applicant.
Judges
Kollapen
Legal Topics
Rule 53 Review, Discovery Under Rule 35, Contractual Compensation, Benchmarking of Service Provider Contracts, Confidentiality Regime, Revenue Share Calculation
Civil Procedure Commercial and Corporate Rule 53 Review Discovery Under Rule 35 Contractual Compensation Benchmarking of Service Provider Contracts Confidentiality Regime Revenue Share Calculation

Case Brief

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Parties

Nkosana Makate

Applicant

Shameel Joosub N.O.

Respondent

Vodacom

Respondent

Procedural Posture

Interlocutory Application / Application for Discovery and Supplementation of Record in Rule 53 Review Proceedings

Legal Issues

  1. 1 Whether the applicant is entitled to discovery of specific contracts and financial data from the second respondent for use in the main Rule 53 review.
  2. 2 Whether the first respondent must supplement the Rule 53 record with documents not considered in his determination.
  3. 3 Whether Rule 53 and Rule 35(14) of the Uniform Rules of Court apply to the proceedings and entitle the applicant to the documents sought.

Ratio Decidendi

The court held that Rule 53 applies to the determination made by the first respondent, as the process resembled that of a domestic tribunal and was underpinned by principles of fairness and reasonableness. However, the documents sought by the applicant were not considered by the first respondent and thus do not form part of the Rule 53 record. The court found that Rule 35(14) may be invoked in applications where the issues are clearly defined and the documents sought are relevant to reasonably anticipated issues in the main review. The court granted the applicant access to specified VAS contracts and underlying financial data used to calculate voice revenue, as these are central to the...

Court Disposition

Application granted in part: relief against the first respondent refused; relief against the second respondent granted for specified contracts, underlying financial data, and a confidential portion of the KPMG report; costs awarded to the applicant.

Orders

  • The second respondent is ordered to provide the applicant’s attorneys within 21 days with copies of thirteen specified VAS contracts.
  • The second respondent is ordered to provide all available underlying data and financial information which served as the source for figures in Table 1 of the first respondent’s determination for the period 2001–2018.