Judges are human, but...
‘... 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.