Capacity: Judge
Appointed to the Supreme Court of Appeal: 2018
Further appointments: N/A
First appointed as a judge: 26-08-2009 to the Gauteng High Court
Key judgments: (1) Kekana v The State (37/2018) [2018] ZASCA 148 (31 October 2018) ; (2) NPGS Protection and Security Services CC & another v FirstRand Bank Ltd (314/2018) [2019] ZASCA 94 (6 June 2019) ; (3) Mochebelele v Director of Public Prosecutions, Gauteng & others (377/2018) [2019] ZASCA 82 (31 May 2019)
Gender: Male
Ethnicity: African
Candidate Bio:
Gauteng High Court judge Tati Makgoka has acted twice at the Supreme Court of Appeal and has also spent acting stints at the Labour Appeal Court and the Constitutional Division of the Lesotho High Court. He was appointed to the Gauteng High Court in 2009 after having worked as an attorney since 1994.
He has written some landmark judgments while on the Bench. In the 2012 judgment of Harmony Gold Mining Company Ltd v Regional Director: Free State Department of Water Affairs and Others Makgoka was asked to decide on whether the National Water Act’s requirements to control and prevent pollution on land becomes invalid once that land has been sold on.
In an important judgment for environmentalists who had long been critical of mining companies’ pollution of rivers and lands, Makgoka recognised the “clear causal and moral link” between the water department’s directive that Harmony Gold clean up land it had mined and the company’s “pollution activity”.
Makgoka noted that Harmony Gold had “failed to submit, or inadequately submitted, information necessary to determine and calculate the joint and several responsibility and liability of each individual mining house for contribution towards the costs incurred to remedy pollution caused by these mining houses. The mining houses had also failed to share the costs necessary for taking measures to prevent pollution.”
Makgoka found that where “the directive was issued while a person was in control to take the preventative measures, his unfulfilled obligations do not become discharged or nullified once he ceases to be in control. If he severs ties with the land, fully knowing that his validly imposed obligations remained unfulfilled, he can hardly complain if it is insisted that he should comply with those before he is discharged from them.”
The application was dismissed with no costs order made against Harmony Gold. An appeal to the Supreme Court was also dismissed with the appellate division noting: “The court a quo correctly dismissed Harmony’s application. Makgoka J was also correct in following ‘. . . the general approach of not awarding costs against an unsuccessful litigant in proceedings against the State, where matters of genuine constitutional import arise’.”
In another high court matter, AfriForum v Emadlangeni Municipality Makgogka was critical of local municipalities ignoring their duties towards transparent governance, especially when organisations or individuals seek to use the Promotion of Access to Information Act.
When the municipality had used new reasons not to furnish AfriForum with information it was seeking, Makgoga, ruled that, in order to “avoid further technical points of ambiguity.. I propose to make an order to facilitate the furnishing of further particulars by the appellant to the respondent as to the specific report it seeks. In that way, I will be adopting an approach which is consonant with the objects of PAIA, and giving effect to the right of access information held by public bodies.”
A member of the Black Lawyers Association, Makgoka also served on the disciplinary committee of the Law Society of the Northern Provinces. He holds a B.Proc from the University of the North.
April 2018 Interview:
April 2018 Interview Synopsis:
The Supreme Court of Appeal (SCA) often gets a bad rap for being an unwelcoming place for new arrivals — especially if the senior judges considers you inferior, for whatever reason.
However, Judge Tati Makgoka told the commission that President Mandisa Maya, who was appointed full-time to the court in April 2017 “has heralded in a new era” at the appellate division: “She is firm, she is fair… these challenges she will be able to deal with,” he reassured the Judicial Service Commission (JSC).
Makgoka told the commission that when he first went to act in Bloemfontein he was, on one hand, greeted warmly but, on the other, also experienced a “coldness” from some judges.
Asked by Chief Justice Mogoeng Mogoeng whether some of the more icy responses where down to race, Makgoka said “sometimes it has to do with intellectual superiority”. Was this actual or assumed superiority, Mogoeng followed up, to which Makgoka responded that “in most cases” it was assumed.
Makgoka told SCA President Mandisa Maya that he had no problems writing judgments, which she confirmed by noting that she had “heard very good comments from senior colleagues about your writing skills”.
When Maya asked him for advice in making the SCA a more open and welcoming place, Makgoka suggested that the judges’ chambers be mixed around from the current arrangement where all the senior judges were in one wing and the junior and acting judges in another.
He told the commission that “if I have to step back for an African women to be appointed, I would be prepared.”
Attorney Sofiso Msomi, one of four presidential appointments to the JSC, asked Makgoka about the perception that there was resistance by the SCA to develop the common law. Makgoka, who felt he had not written any judgments which developed the common law, agreed saying there were a “number of cases” which went from the appellate court to the Constitutional Court where there was a “completely different” outcome.
Advocate Dali Mpofu, representing the advocates’ profession asked Makgoka whether the recent death of his wife would affect his ability to move to Bloemfontein if he were appointed. He assured the commission that the loss would not be a hindrance. He also told the commission that his background in the Black Consciousness Movement meant that he was “firm, especially on matters of race”.
Responding to a question from the ANC’s Jomo Nyambi about the “hallmarks” of a well thought out and good judgment, Makgoka said it would be one that “conveys the footprints of a judge in a manner that is understandable, firstly to the litigants, but also to the public.”
