Enter your keyword

Judge Mandela Makaula

Capacity: Judge
First appointed as judge: January 2010 (Eastern Cape, Gqeberha)
Gender: Male
Ethnicity: Black
Date of Birth: May 1964
Qualifications: B. Juris, LLB (University of Transkei), LLM (Georgetown University, USA)

Key judgments:

Candidate Bio:

Although born at Kwa-Thema in Gauteng, Judge Makaula’s life and legal career seems to have been moulded in the Eastern Cape.

Makaula matriculate from Freemantle Boys School, Lady Frere in the Eastern Cape. He holds a B. Juris and LLB from the University of Transkei and an LLM from Georgetown University in the United States.

His legal career started as a clerk and court interpreter in the mid-80s before he worked his way up to become a prosecutor and then magistrate. He was appointed a magistrate at Libode Magistrates Court in 1988.

Makaula then moved from being a magistrate to being a candidate attorney in 1990, just after obtaining his LLB degree, which he obtained in 1989. After completing his articles of clerkship, he practiced as an attorney at Makaula Zilwa & Co., from 1993 until 2010.

Makuala was appointed to the Eastern Cape High Court in 2010. Prior to his permanent appointment he had acted as a judge in that division. He has acted as a Supreme Court of Appeal Justice from January 2022 until May 2022 and again from April 2022 until September 2022.

Makuala has had a long history of reserved judgments — something the Judicial Service Commission does not take kindly to. According to the norms and standards for the Performance of Judicial Functions, judges are required to hand down judgments no more than 3 months of hearing a matter. Makaula has proven unable to adhere to this requirement and this is an issue that was previously raised with him by the JSC during his interview in April 2017.

Makaula has presided over various cases, some of which have been controversial and highly publicised. He initially presided over the case of S v Omotoso, which concerned a pastor (Omotoso) who was arrested in April 2017, by the Hawks for allegations of rape, human trafficking, and racketeering. Makaula recused himself during the trial when it became apparent that state witnesses had been provided with accommodation at a guesthouse which was owned by his wife. Despite there having been no formal recusal application, Makaula was of the view that it was appropriate for him to recuse himself.

While acting at the SCA, Makaula scribed for the appeal bench in the case of Baloyi v S (739/2021) [2022] ZASCA 35. This was an appeal from the full bench of the High Court. ‘The appellants in this case were charged with murder where the provisions s 51(1) of the Criminal Law Amendment Act 105 of 1997 (CLAA), which prescribed the imposition of life imprisonment were applicable.’ The trial court had found that the appellants were guilty as charged. The trial court went further in its decision and found that the accused persons were guilty of premediated murder. The trial court had made no mention of planned or premediated murder in its conviction. The finding that the accused persons were guilty of premediated murder was noted for the first time by the trial court in its sentencing. In an appeal to the full bench, the full bench agreed with the trial court and dismissed the appeal. The SCA had to determine whether the state had established that the murder was indeed premediated.

At the SCA Makaula noted that the trial court was correct in its analysis of the evidence and finding the appellants were guilty as charged. However, the trial court misdirected itself when it mentioned premediated murder for the first time in its sentencing. In reaching this conclusion, Makau found it necessary to consider the evidence presented before the trial court. In considering the evidence Makaula noted that the second accused had fought with the deceased earlier in the day, later committed the murder with the first accused and this was a continuation of the fight that had earlier occurred. According to Makaula, the appellants ‘had time to think about the attack. The attack did not occur on the spur of the moment…. It is necessary to point out that not in every instance, that an accused is armed with a weapon, will it be an indication of premeditation.’ However, in this case, the murder was premeditated.

Although according to the evidence the murder was premediated, Makaula had to consider the appropriateness of the trial court mentioning premeditation at sentencing for the first time, as it was not mentioned during conviction. Makaula noted that this is an ‘issue that seems to continue to perplex presiding officers in criminal trials where planning or premeditation is alleged by the State. The question arises: must a trial court determine whether the murder was planned or premeditated at conviction?’ He then considered that a ‘similar question arose in S v Taunyane. As in this case, the trial court failed to mention at the conviction stage that the accused was guilty of planned or premediated murder. It was only at the sentencing stage that mention was made. The full court found that such omission constituted a misdirection. Makaula determined that the trial court had ‘misdirected itself in pronouncing that the murder was premeditated only at the sentencing stage.’

He then noted that the appellants were not prejudiced by the trial court’s misdirection because there was compelling evidence pointing to premediated murder and they had been informed of the applicability of the minimum sentencing legislation on the basis of premeditated murder. Therefore, the SCA dismissed the appeal and in concluding, Makaula pronounced that ‘[j]ustice should not only be done or seen to be done to the accused, it has to be meted out to the victims and those affected by the actions of an accused, as well.’

Makaula was a member of NADEL for twenty years, he was an instructor at the East London Law School for eleven years and was an examiner for the then Cape Law Society (now Legal Practice Council) for five years.

October 2022 Interview

October 2022 JSC Interview of Judge Mandela Makaula for a position on the Supreme Court of Appeal. Judge Makaula’s application was unsuccessful.


April 2017 interview


April 2017 Interview Synopsis

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.”