Makate v Vodacom (Pty) Ltd (2011/07680) [2011] ZAGPJHC 241; 2014 (1) SA 191 (GSJ) (18 November 2011)

Makate v Vodacom (Pty) Ltd (2011/07680) [2011] ZAGPJHC 241; 2014 (1) SA 191 (GSJ) (18 November 2011)

The court found that Vodacom's denial of the existence of certain documents was not sufficiently credible, given the company's electronic record-keeping practices and internal documentation indicating the data's existence. The court held that electronic records and data messages are discoverable under Rule 35 and the Electronic Communications and Transactions Act. The court exercised its discretion to order further discovery of documents relevant to the 'Please Call Me' product, including call records, revenue data, contracts, and incentive policies, as these are necessary for quantification and settlement negotiations. The court also referred certain issues regarding the existence of...

Citation
[2011] ZAGPJHC 241
Parties
Applicant: Makate, Nkosana Kenneth; Respondent: Vodacom (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
18 November 2011
Case Number
2011/07680
Procedural Posture
Civil Application / Rule 35(7) Application to Compel Further Discovery
Outcome
Application to compel further discovery granted in part; certain issues referred to oral evidence; costs reserved.
Judges
Spilg
Legal Topics
Discovery of Documents, Electronic Evidence, Quantification of Claim, Contractual Remuneration, Employee Innovation, Settlement Negotiations
Civil Procedure Commercial and Corporate Discovery of Documents Electronic Evidence Quantification of Claim Contractual Remuneration Employee Innovation Settlement Negotiations

Case Brief

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Parties

Makate, Nkosana Kenneth

Applicant

Vodacom (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Rule 35(7) Application to Compel Further Discovery

Legal Issues

  1. 1 Whether Vodacom is obliged to make further discovery of documents relevant to the 'Please Call Me' product under Rule 35(7).
  2. 2 Whether documents relevant only to quantum must be discovered before liability is determined.
  3. 3 Whether electronic records and data stored by Vodacom constitute discoverable documents under Rule 35.

Ratio Decidendi

The court found that Vodacom's denial of the existence of certain documents was not sufficiently credible, given the company's electronic record-keeping practices and internal documentation indicating the data's existence. The court held that electronic records and data messages are discoverable under Rule 35 and the Electronic Communications and Transactions Act. The court exercised its discretion to order further discovery of documents relevant to the 'Please Call Me' product, including call records, revenue data, contracts, and incentive policies, as these are necessary for quantification and settlement negotiations. The court also referred certain issues regarding the existence of...

Court Disposition

Application to compel further discovery granted in part; certain issues referred to oral evidence; costs reserved.

Orders

  • The Defendant is directed to make further discovery within 15 days of specified records relating to 'Please Call Me' product calls since 2000.
  • The Defendant must produce paragraphs 4.5 and 4.7 (pages 25-37 and 39-49, excluding paragraph 4.8) of the KPMG Forensic Investigation Report dated 3 November 2008.