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
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