Makuala has a long history of reserved judgments — something the Judicial Service Commission and Chief Justice Mogoeng Mogoeng, especially, do not look kindly upon.
When he does complete judgments, Makuala sometimes channels divine inspiration: in the matter of S v Ximiya, he wrote that the applicant “should thank God, if she is a Christian like I am, that she was not raped”.
Makuala was appointed to the Eastern Cape Division of the High Court in 2010. Prior to that he had practised at law firm Makuala Zilwa & Co, for two years. His legal career had started as a clerk and court interpreter in the mid-80s, before he had worked his way up to become a prosecutor and then magistrate. He holds a BJuris and and LLB from the University of Transkei and an LLM from Georgetown University in the United States.
Apartheid divisions are still evident, structurally and socio-economically, in the Eastern Cape, said Judge Mandela Makaula — and this was apparent in the resourcing of courts, access to justice and the lack of transformation of the legal fraternity in the province.
He said that courts in the former bantustans of Transkei and Ciskei had infrastructure problems and “case flow blockages” while those in the urban centres like Grahamstown and Port Elizabeth were better equipped and had better institutional processes, like accommodating witnesses overnight to ensure they appeared in court. “I don’t understand why this is not done in courts like Mthatha,” he said.
Makuala said that with the promulgation of the Superior Courts Act, there was a real danger that the high court in “Mthatha is going to run dry of cases” because litigants would rather file cases in places like Grahamstown. He said litigants were reticent to approach the high court in Mthatha because of issues that slowed the wheels of justice like a motion court roll that was not split and blockages which he attributed to slack stakeholders including the head of the Legal Aid Board, the commissioner of prisons and the director of public prosecutions in the city.
He expressed a determination to remind the Grahamstown Bar — where only ten of its 82 advocates were black, and of those, only three were women — that “transformation is key”. “We have to engage them in order to transform them,” he declared. He said there were only three black judges who had emerged from the Grahamstown seat of the division, as opposed to the many more from “the other side of the Kei” River.
The attributes that qualified him for the position was that he was “someone who unifies the division,” Makuala said.
Makuala had, in his own words, been “admonished” by the commission for the number of reserved judgments that were accumulating on his desk in previous interviews. He was hauled over the coals again for the same issue.
In defending a late delivery of a judgment in one matter, he described a personal family tragedy, where his son had run over and killed his grandson by accident, which left him in a state where “I couldn’t function.”