When a judge courts racism

North Gaut­eng High Court Judge Ma­bel Jansen’s racial slurs on so­cial me­dia, claim­ing that sex­ual abuse and vi­o­lence are part of black cul­ture, have elicited pub­lic out­rage, with calls com­ing from var­i­ous sec­tors of so­ci­ety to re­move her from the Bench. Sh

CityPress - - Voices And Careers - John Jef­fery voices@city­press.co.za

Be­com­ing a judge is of­ten the up­per­most ideal to which many law stu­dents, can­di­date at­tor­neys and le­gal prac­ti­tion­ers as­pire. But what does it take to be a judge? To hold ju­di­cial of­fice one is re­quired to be “ap­pro­pri­ately qual­i­fied”, and be a “fit and proper” per­son. The Con­sti­tu­tion also stip­u­lates the need for the ju­di­ciary to re­flect broadly the racial and gen­der com­po­si­tion of South Africa. Ad­vo­cate Su­san­nah Cowen, in her pa­per ti­tled Ju­di­cial Se­lec­tion in South Africa, iden­ti­fies five gen­eral char­ac­ter­is­tics for a per­son to be con­sid­ered fit and proper: in­de­pen­dence, im­par­tial­ity and fair­ness, in­tegrity, a ju­di­cial tem­per­a­ment and a com­mit­ment to con­sti­tu­tional val­ues.

It is these char­ac­ter­is­tics that ex­plain why the pub­lic ex­pects judges to em­body the val­ues of the Con­sti­tu­tion. This would also ex­plain the pub­lic’s out­rage in in­stances where a judge’s con­duct is out of kil­ter with the val­ues of our Con­sti­tu­tion, which up­hold hu­man dig­nity, equal­ity and the ad­vance­ment of hu­man rights and free­doms; non­ra­cial­ism and non­sex­ism; supremacy of the Con­sti­tu­tion and the rule of law; uni­ver­sal adult suffrage; a na­tional com­mon vot­ers’ roll; reg­u­lar elec­tions; and a mul­ti­party sys­tem of demo­cratic govern­ment to en­sure ac­count­abil­ity.

As late for­mer Chief Jus­tice Pius Langa stressed in the Con­sti­tu­tional Court case of MEC for Ed­u­ca­tion: Kwazulu-Natal v Pil­lay, our Con­sti­tu­tion is com­mit­ted to af­firm­ing di­ver­sity: “It is a com­mit­ment that is to­tally in ac­cord with this na­tion’s de­ci­sive break from its his­tory of in­tol­er­ance and ex­clu­sion … which not only af­firms di­ver­sity, but pro­motes and cel­e­brates it.”

A com­mit­ment to these val­ues be­comes all the more im­por­tant be­cause shap­ing a judg­ment is not a clin­i­cal process. Ev­ery per­son who sits as a judge or mag­is­trate brings their ex­pe­ri­ences and sub­jec­tive views of what the law re­quires. As John Du­gard, pro­fes­sor of in­ter­na­tional law, stated: “Sub­con­scious pref­er­ences and prej­u­dices can never be re­moved from the ju­di­cial process.”

Given these pref­er­ences and prej­u­dices that ev­ery hu­man be­ing con­sciously or sub­con­sciously, owns, it is im­per­a­tive that judges and mag­is­trates put con­sti­tu­tional val­ues above their per­sonal views. In our lower courts, the is­sue of ju­di­cial con­duct is at times a con­cern. In­for­ma­tion ob­tained from the Ethics Di­vi­sion of the Mag­is­trates’ Com­mis­sion tells us that at the end of April, they were busy with 98 out­stand­ing cases of mis­con­duct of mag­is­trates. These al­le­ga­tions of mis­con­duct re­late to ab­sen­teeism, ma­jor de­lays in judg­ments, crim­i­nal con­vic­tions and be­ing un­der the in­flu­ence of al­co­hol, to name but a few. This is not the type of con­duct one would ex­pect from the peo­ple en­trusted to up­hold the law.

While the Mag­is­trates’ Com­mis­sion is re­spon­si­ble for dis­ci­plinary ac­tion against mag­is­trates, it is the Ju­di­cial Ser­vice Com­mis­sion that is re­spon­si­ble for in­ves­ti­gat­ing com­plaints brought against judges. Es­tab­lished in terms of the Con­sti­tu­tion, the com­mis­sion in­ter­views can­di­dates for ju­di­cial posts and makes rec­om­men­da­tions for ap­point­ment to the Bench.

In terms of the Ju­di­cial Ser­vice Com­mis­sion Act, there is a Code of Ju­di­cial Con­duct that pro­vides for eth­i­cal and pro­fes­sional stan­dards re­quired of judges. Any wil­ful or grossly neg­li­gent breach of the code may amount to mis­con­duct, which could lead to dis­ci­plinary ac­tion.

The code sets a stan­dard against which the peo­ple of South Africa can mea­sure the judges’ con­duct. It stresses that a judge must al­ways – not only in the dis­charge of of­fi­cial du­ties – act hon­ourably and in a man­ner be­fit­ting ju­di­cial of­fice.

Ar­ti­cle 7 of the code says that a judge must at all times avoid and dis­so­ci­ate him­self or her­self from com­ments or con­duct by per­sons sub­ject to his or her con­trol that are racist, sex­ist or oth­er­wise man­i­fest dis­crim­i­na­tion. The code also makes it clear that the le­git­i­macy of the ju­di­ciary de­pends on the pub­lic un­der­stand­ing of, and con­fi­dence in, the ju­di­cial process.

Our Con­sti­tu­tion is trans­for­ma­tive; it en­vis­ages the type of so­ci­ety that we want to cre­ate in our coun­try. We have an in­de­pen­dent ju­di­ciary, which has de­liv­ered some of the most ground-break­ing hu­man rights ju­rispru­dence in the world. Be­cause judges are the up­per cus­to­di­ans of the Con­sti­tu­tion, they should be its great­est pro­po­nents. Where they fail to live up to our na­tion’s con­sti­tu­tional val­ues, the com­mis­sion must deal with them swiftly and free of fear or favour. Jef­fery is deputy min­is­ter of jus­tice and con­sti­tu­tional devel­op­ment

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