In 2016 Judge Shane Kgoele dismissed an appeal by a temporary teacher who was convicted of having penetrative sex with a learner who was under 16 years-old. The teacher had appealed on the grounds that the learner had mislead her into believing he was older than 16.
Kgoele found that the “exploitation of emotionally immature children and the risks of sexually transmitted diseases are causes for serious concern… The fact that the appellant was in a educator–learner relationship with the child aggravates the matter. What compounds the matter further is that the sexual encounter occurred more than once, even after the appellant received the birth certificate of the victim. The offence was committed by a person who clearly knows what the law and the Scripture say about morality.”
Judge Kgoele holds a BProc from the University of the North and an LLB and LLM from the University of South Africa. She has worked as a prosecutor, magistrate before acting at the high court in the North West in 2008. She was permanently appointed to that division in 2009.
Sometimes Judicial Service Commission (JSC) interviews move with the dynamicism of day-old porridge — with the attending public and, sometimes, commissioners, acquiring the demeanour of people drowning in its excruciatingly stodgy consistency.
Initially, this was one such interview. Judge Maleshane Kgoele appeared ill-prepared and under-qualified — often ponderous in her responses.
When she was unable to go into detail about the challenges the magistracy (Judges President and Deputy-Judges President oversee the magistrate’s and regional magistrates’ courts in the provinces) faces, Chief Justice Mogoeng Mogoeng expressed his irritation: “I thought that in preparation for this interview you would do more [research into the challenges]… that you would be curious to know more about the challenges you face [as a prospective Deputy-Judge President],” he said.
Withering, but not enthralling. Then she appeared to be ambushed, with a shipping container of dirty linen wheeled out and dumped on her.
North West Judge President Monica Leeuw confronted Kgoele about what appears a long-simmering issue at the court that related to the candidate’s refusal to give reasons for a number of cases which had not been finalised by her. This was after a complaint by the Director of Public Prosecutions (DPP) in the province had been lodged with Leeuw in 2011.
Kgoele had responded in a letter saying that the reasons for several postponements were “self-explanatory” and “could be found in the record”, refusing to advance reasons. When questioned about it during her interview, Kgoele said her impression of the request was that it was not her Judge-President who was asking for reasons, but the DPP, “which in my view, I could not do”.
Leeuw then raised concerns about her apparent lack of interest in case-flow management. Kgoele took umbrage with the “manner” in which the concerns had been raised by Leeuw — a complaint lodged with the JSC 48 hours before her interview — and told the commission that she “would have appreciated if these were raised with me, rather than in public” and not in a “short-space of time, while I was preparing for my interview”.
She went further — by questioning the timing of the complaint — to suggest that there may have been malicious intent behind the manner it was lodged by Leeuw. Refusing to back down, Kgoele insisted that these issues could have been raised, and dealt with, as and when they had arisen in private, rather than in such a public platform — and well before her interview at the JSC.
Mogoeng observed that, despite Kgoele’s contention that she had a good working relationship with Leeuw, this appeared not to be the case. The Chief Justice said: “I don’t get the sense there is a healthy relationship between you… there is a lot of sarcasm [in your responses to Leeuw]… and the way she [Leeuw] puts questions to you it’s like a cross-examination”.
Commissioner Sifiso Msomi then asked Kgoele how she would be able to work with Leeuw since she appeared to be a “for lack of a better word, a problem child.”
Kgoele said “we have to be professional in our work… the complaints do not relate to my judicial work… I do my job when allocated.”
Towards the end of the interview, Leeuw stated that “it’s not true that we are having a good relationship… she has on and off days”.
Kgoele responded: “It’s unfortunate that my JP says that, I still maintain that I have no ill feeling towards my JP.”
The sense that the complaint lodged by Leeuw was an orchestrated attempt to either get Kgoele to withdraw her candidacy, or to discredit her in the eyes of the JSC, appeared to be borne out by the commission deciding not to recommend anyone for the position. Some commissioners, it would appear, had developed sympathy for Kgoele following the manner in which her interview had been set up — and stitched up, perhaps.
Prior to the face-off, Kgoele had, during her interview, listed several challenges facing the judiciary in the North West province. These included domestic violence cases only being heard on certain days, thus inhibiting access to justice; that there was no office space to interview complainants in gender-based violence cases, leaving these to be conducted in public; the backlog in the Children’s Court and that staff morale, especially between prosecutors and court clerks, was low.
She said her vision for the courts included getting “buy-in” from judges for case flow management and the introduction of a “mentorship programme” involving acting and prospective judges “shadowing” more experienced senior colleague for skills and knowledge development.