Judges are hu­man, but...

CityPress - - Voices -

‘... men [and women] who make their way to the Bench some­times ex­hibit van­ity, iras­ci­bil­ity, nar­row­ness, ar­ro­gance and other weak­nesses to which hu­man flesh is heir.” – Jus­tice Jack­son of the US Supreme Court “Judges’ dis­ease ... pom­pos­ity, ir­ri­tabil­ity, talkative­ness...” – Lord Hail­sham

These two quotes were used in a Supreme Court of Ap­peal judg­ment ear­lier this year in­volv­ing two Con­sti­tu­tional Court judges, Bess Nk­abinde and Chris Jafta, against the Ju­di­cial Ser­vices Com­mis­sion (JSC). They re­mind us that, ul­ti­mately, judges are hu­man – slaves to prej­u­dice and moods, like all of us.

But as the smoul­der­ing qual­ity of Judge Ma­bel Jansen’s Face­book posts burnt across South Africa this week, so­ci­ety reached an­other con­sen­sus. Our judges can­not be racist and his­tor­i­cally ig­no­rant about this fair land. Jansen’s world-view is racist and ahis­tor­i­cal. Rape cul­ture is our scar from years of the twin­ning of racism and pa­tri­archy; of apartheid and colo­nial­ism. Scarred by the de­struc­tion of fam­i­lies by the mi­grant labour sys­tem. Scarred by the home­land sys­tem and its lay­ered op­pres­sions. Rape cul­ture and gen­dered vi­o­lence cut through colour and class. A judge should know this. Or should s/he?

The cases of Jansen and the fes­ter­ing trial of Judge Nkola Mo­tata (who heaped op­pro­brium on whites) show us that judges don’t know this. It re­veals that the sen­si­tiv­ity train­ing our judges are put through is clearly an in­suf­fi­cient ground­ing in the demo­cratic val­ues threaded into our Con­sti­tu­tion.

Though not the same thing, the com­ments by Judge Ni­co­lene van der Westhuizen in the pa­role case of Chris Hani’s as­sas­sin, Janusz Waluś, showed sim­i­lar in­sen­si­tiv­ity when she ad­vised Hani’s fam­ily that it was time to move on. In South Africa’s vic­tim-ori­ented le­gal sys­tem, there must be ju­di­cial align­ment with this, and it should be said that a judge should be free of race prej­u­dice.

And it is time to ask why the JSC takes so long to deal with al­leged ju­di­cial mis­con­duct. Some cases have run for eight years.

The Cana­dian Supreme Court’s elo­quent char­ter for ju­di­cial con­duct, quoted by our Supreme Court of Ap­peal, sets up im­por­tant pa­ram­e­ters we can use. To wit, the fol­low­ing:

“The judge is the pil­lar of our en­tire jus­tice sys­tem.”

“[Judges] are the fore­most de­fend­ers of in­di­vid­ual free­doms, hu­man rights and the guardians of our val­ues.”

“Pub­lic con­fi­dence in and re­spect for the ju­di­ciary are es­sen­tial to an ef­fec­tive ju­di­cial sys­tem and, ul­ti­mately, to democ­racy founded on the rule of law.”

So, yes, judges are hu­man, but the im­por­tance our young democ­racy places on them de­mands they be an­tiracist and an­ti­sex­ist too.

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