No nomination for North West Deputy Judge President
Two candidates were interviewed by the JSC in April for the position of Deputy Judge President of the North West Division of the High Court. The first candidate to be interviewed was Judge Ronald Hendricks.
In Pilane and Another v Pheto and Others, Hendricks had to rule on whether the respondents were members of the Bakgatla–Ba–Kgafela Royal Family and had the powers to call a meeting of the “royal family”.
Hendricks found that the respondents were “not core members” of the royal family and did not have the standing to call such a meeting. The judgment was criticised by academics Aninka Claassens and Boitumelo Matlala.
In an article published in the New South African Review they argued that the judgment was a “disconcerting and novel interpretation of customary law” which deferred membership of a royal family and chiefly status to “the discretion of a ‘paramount’ based in another country.” They added that the judgment meant chiefs could not be held accountable by the communities.
“I am definitely a team leader,” Hendricks told the commission during his interview, “I like to operate in a group and work together.”
When asked by Chief Justice Mogoeng how he would “anticipate” and then “crush” any “factionalism in a court setting”, Hendricks said he would use the personal touch: calling people in to discuss “an impasse or a misunderstanding… you have to do it on a personal level and not through correspondence”.
When asked about conflicts in the workplace he said he would mediate between affected parties.
He suggested that to broaden the pool of prospective female judges provincial workshops for lawyers and legal academics be held where attendees would be informed of what “the work of a judge entails” and practical experiences and guidance could be shared.
The second candidate for the position was Judge Shane Kgoele. Initially, she 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 district magistrate’s and regional magistrates’ courts in the provinces) faces, Chief Justice 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. (Watch Judge Kgoele’s JSC video from minute 44:00 onwards.)
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.
Watch the videos of the JSC interviews for the Deputy Judge President of the North West Division of the High Court:
Read our article: Customary law and the courts.