Capacity: Judge
First appointed as a judge: 2009 (Gauteng High Court, Johannesburg)
Further appointment: 2018 (Supreme Court of Appeal)
Gender: Male
Ethnicity: African
Date of Birth: February 1968
Qualifications: B.Proc (1992)(Uni.Limpopo) LLB (2021)(Unisa)
Key judgments:
- Democratic Alliance v Minister of International Relations and Cooperation (CASAC Intervening) [2017] 2 All SA 123 (GP); 2017 (1) SACR 623 (GP) (22 February 2017)
- Fluxmans Incorporated v Levenson (523/2015) [2016] ZASCA 183; [2017] 1 All SA 313 (SCA); 2017 (2) SA 520 (SCA) (29 November 2016)
- Magidiwana v President of the Republic of South Africa (37904/2013) [2013] ZAGPPHC 292; [2014] 1 All SA 76 (GNP) (14 October 2013)
- National Commissioner of Correctional Services v Democratic Alliance (SAIRR as Amicus Curiae) 2023 (1) SACR 492 (SCA) (21 November 2022)
Candidate Biography (updated April 2024):
Justice Tati Makgoka is a judge of the Supreme Court of Appeal.
After graduating with a B.Proc Law degree from the then University of the North (now Limpopo) in 1991, Makgoga immediately started his legal career as a candidate attorney (then called articles of clerkship) at a Pretoria law firm from 1992 – 1993. He would practice as an attorney for the next 14 years until 2007.
While Makgoka is a lawyer by training, he is a teacher at heart. Throughout his time as an attorney, Makgoka lectured extensively on court procedures, attorneys’ ethics, and attorney’s bookkeeping to candidate attorneys and entrants to the field. In 2008, 2009, 2010 and 2013, Makgoka was voted as the ‘most inspiring lecturer’ in the Law Society’s Legal Education and Development courses; and in 2015 received an appreciation certificate from the Law Society of the Northern Provinces for his contribution to the training of candidate attorneys. He would remain on the LEAD lecturing team from 2006 until 2018, and as a lecture on the Black Lawyer’s Association’s Legal Education Centre from 2010 to this date.
Makgoka has also served as a judicial trainer. Between 2014 to 2020 he published six judicial training manuals on judgment writing, court procedures and aspects of the law including credit law and constitutional law.
In 2007, Makgoka took up several stints as an acting judge in the Pretoria High Court. He was appointed permanently as a judge of the Gauteng High Court in Pretoria and Johannesburg.
Following the tragic Marikana Massacre of August 2012, the president established a commission of inquiry into the circumstances of South Africa’s first post-apartheid police massacre. While all the police were fully legally represented at taxpayer expense, those who were injured and arrested were not – including the first applicant, Mr Mzoxolo Magidiwana, who was temporarily paralysed from the waist down through police gunshot. Magidiwana and his applicants filed an application at the Gauteng High Court seeking to reverse Legal Aid SA’s decision not to provide them with legal representation at the Marikana Commission. After examining the Legal Aid South Africa Act, LASA policies, plus the constitutional prescripts underpinning the exercise of public power, Makgoka found that LASA’s decision not to fund the injured and arrested miners was irrational.
During 2015 Makgoka simultaneously took up acting appointment as an acting judge of the Labour Appeal Court and the Constitutional Division of the Lesotho High Court. Soon after, from 2016 to 2018, Makgoka served for four terms as an acting justice of the Supreme Court of Appeal. In June 2018, he was made permanent.
The 2021 case, Clicks Group Ltd v The Independent Community Pharmacy Association , dealt with whether the Clicks Pharmacy corporate structure contravened regulation 6(d) of the Pharmacy Act, which prescribes who may own a community pharmacy. According to the regulation a person should not have a beneficial interest in a community pharmacy whilst also having a beneficial interest in a manufacturing pharmacy. The purpose of this regulation is to ensure that pharmacists don’t have a vested interest in the drugs they disperse or recommend. The Independent Community Pharmacy Association alleged that Clicks was effectively ‘double dipping’ by owning both manufacturing pharmacies and community pharmacies, in violation of the regulation. The majority of the SCA found that this was not the case. Makgoka disagreed.
In his dissenting judgment Makgoka set out a proper interpretation of the Regulation in question. In his view, the restrictive English law interpretation of ‘beneficial interest’ should not be relied on, but ‘beneficial interest’ in regulation 6(d) must be more broadly than just strict ownership. He noted how the right to have access to health care was implicated in this matter as this right includes having access to “quality and affordable medicines”. He concluded that through its complex corporate structure, which included both manufacturing and community pharmacy units, Clicks had contravened Regulation 6(d). In a subsequent appeal, the Constitutional Court upheld Makgoka’s interpretation.
While serving full time as a judge of appeal, Makgoka was also appointed to the Judicial Conduct Committee, which is responsible for receiving and adjudicating complaints of misconduct against judges. Makgoka sat in the Judicial Conduct Tribunal that found Western Cape Judge President John Hlophe guilty of gross misconduct, paving the way for his subsequent impeachment.
A girl dad, Makgoka has two daughters. He actively served on the governance structures of their school, including as chairperson of the Parents Association and as a member of the Board of Governors.
Makgoka has had a long and distinguished career as both a legal practitioner and as a judge. His lasting commitment to legal commitment, training and development is likely to attract him some plaudits on the JSC.
April 2024 Interview:
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.”
