Enter your keyword

Mr David Makhoba

Makhoba - JSC interviews - October 2019


Current position: Regional Court Magistrate

Date appointed: Joined the magistracy in 1995

Candidate bio:

Makhoba hit the headlines while sentencing a convicted rapist to 15 years in jail for the kind of bizarrely gendered and anti-poor reasoning as to what motivates men to rape.

Sitting in the Pretoria Magistrate’s Court, Makhoba told 41-year-old businessman Samuel Adebamowe he should not have committed the crime because he was rich and could easily have afforded the services of sex-workers, according to media reports.

“He [Adebamowe] is a man of high calibre. He is said to have been a director of a big company and also lives in a mansion worth millions… But his actions speak otherwise. There are sex-workers he could have gone to.”

The 2019 matter of Accounting Made Easy CC v School Accounting Made Easy (PTY) Ltd was an application to interdict and restrain the respondent in terms of the Trade Marks Act.

Both parties offered accounting lessons and learning material. The applicant was seeking the exclusive use of the mark ‘accounting made easy’. In a counter application, the respondent argued that the applicant’s trade mark was generic, and a general description of a product for educational purposes and therefore not registrable. The respondent therefore sought the removal of the applicant’s registered trade mark in terms of the Trade Marks Act.

After referring to the guiding principles established in the Plascon-Evans Paints v Van Riebeeck Paints, Makhoba found the onus fell upon the applicant to prove that the mark “school accounting made easy” may cause confusion or deceive customers as it closely resembles the applicant’s registered mark.

Makhoba held that what the applicant sought to enforce did not amount to an infringement since it fell outside the class of the services that the respondent was offering. The court further reasoned that both the trademarks, and the services rendered by the parties were unique from each other. The different logos used by the two businesses further justified why there was no confusion between the business services offered by the different parties.

The application was dismissed with costs. The counter application was also dismissed with costs on the grounds that the trademark was different from other trademarks.

Makhoba has acted at the Gauteng Division of the High Court since 2002 onwards, with an eight year break from 2006 to 2013.

President of the Association of Regional Magistrates of South Africa (Armsa) since 2013, the regional court magistrate joined the magistracy in 1995 after working as a public prosecutor for four years.

Fifty-six year-old Makhoba holds a B.Juris (1989) from the University of South Africa and an LLB (1997) from Vista University. In 2001 he completed his LLM at the University of Pretoria.

October 2019 Interview:

October 2019 Interview Synopsis:

The interview of Mr D Makhoba commenced with an acknowledgement of his wealth of experience by the Chief Justice. His legal career commenced in 1990 as a prosecutor for the Department of Justice and in 1995 he became a district court magistrate. From the outset, the Chief Justice raised a controversial question on how a person can be a magistrate and a member of a political party at the same time. Makhoba explained that it was a pure coincidence that he took up membership with the African National Congress (ANC) as the same time as when he became a magistrate. He further explained that he took up membership with the ANC because his cousin convinced him to, saying he was ‘very immature’ at that point in time and “in those days almost everyone was a member of the ANC”. After some time, he realised that it was not acceptable to be a member of the judiciary and a member of a political party at the same time. As a result, he never renewed his membership with the ANC.

Judge President Dunstan Mlambo ventured into posing questions to Makhoba by stating “Mfowethu!” which means “my brother”, as this is how they normally address each other. With excitement in his voice, Makhoba agreed by stating “kunjalo JP”. Reminiscing, JP Mlambo noted that Makhoba started acting as a judge in 1990 in Durban. It is during these earlier years that JP Mlambo and Makhoba locked horns. In the last trial that they ran against each other JP Mlambo was defending the matter and Makhoba was the prosecutor. Amid the trial, Makhoba was appointed as a magistrate and could not continue with the trial against JP Mlambo. Makhoba went to JP Mlambo and commented that the JP was lucky that he (Makhoba) had been appointed as a magistrate and could no longer run the trial.

Of note were the comments made by the Democratic Governance and Rights Unit (DGRU) regarding a media coverage on Makhoba. Commissioner Fourie reiterated these comments and sought a response from Makhoba. The comments were inter alia that Makhoba during court proceedings stated to a convicted rapist that because he (the convicted rapist) was rich he should not have committed the crime because he could have easily acquired the services of a sex worker. In response Makhoba only noted that this is not how he talks in court.

Upon further probing by Commissioner Fourie and later by the Chief Justice, Makhoba responded that he had contacted the court manager and requested the record of the court proceedings in order to determine the truthfulness of the comments made by the media coverage. During his interview Makhoba had not received the record of the court proceedings and therefore noted that he cannot comment on whether he uttered such comments in court.

Makhoba was provided a further opportunity to redeem himself regarding the comments he had allegedly made during court proceedings. Commissioner Cane queried whether Makhoba would find it wrong for a magistrate to make the alleged comments during court proceedings. Without answering the question Makhoba reiterated that he cannot confirm whether he had made such comments during court proceedings as he does not have the court record before him.

Commissioner Malema also afforded Makhoba an opportunity to redeem himself regarding the alleged comments, by asking what Makhoba thought ought to be done regarding the high rate of domestic violence and rape in South Africa and whether rape is an issue that causes him sleepless nights. In response, Makhoba noted that as a presiding officer there is nothing much he can do, politicians must play their role.