The Mercury

Rape remark judge under pressure

- Khaya Koko

THERE are “reasonable grounds” to suspect that suspended and controvers­ial Judge Mabel Jansen is guilty of gross misconduct.

This emerged from an e-mail written by Judicial Service Commission (JSC) secretary Sello Chiloane, dated April 7.

Chiloane wrote: “Kindly note that the JSC, at its sitting held on April 4, considered the recommenda­tion of the judicial conduct committee regarding the complaints lodged against Judge Jansen that the complaints should be investigat­ed and reported to by a judicial conduct tribunal.

“Having considered the judicial conduct committee recommenda­tion, the JSC has found that there are indeed reasonable grounds to suspect that Judge Jansen is guilty of gross misconduct as contemplat­ed in section 177(1)(a) of the constituti­on. As a result, the JSC has decided to request the chief justice to appoint a judicial conduct tribunal to investigat­e and report on the complaints.”

Section 177(1)(a) states that a “judge may be removed from office only if the (JSC) finds that the judge suffers from an incapacity, is grossly incompeten­t or is guilty of gross misconduct”.

Culture

The complaints against Judge Jansen relate to Facebook posts she wrote last year in which she intimated that rape was part of black people’s culture and that she had yet to meet “a black girl who was not raped at about 12 (years)… the black people are by far no angels. Their conduct is despicable.”

The JSC did not respond to a request for comment, including detailed questions, by the time of publicatio­n.

Black Lawyers Associatio­n (BLA) president Lutendo Sigogo confirmed that his organisati­on had been told of the JSC’s decision, saying this confirmed the BLA’s strong belief that Judge Jansen’s remarks were “racist and discrimina­tory”.

He added that this would also protect the judiciary’s integrity.

“As a judge, you are an arbiter of facts and should not be prejudiced by your thoughts or your background; you should exercise that duty with caution and make sure that you are accepted by all persons in society.

“If the judiciary is not accepted or is doubted, then the authority of the judiciary will be questioned. And that is what we don’t want as the BLA,” Sigogo said.

Legal researcher from the Free Market Foundation, Martin van Staden, said that Judge Jansen did not meet the threshold “as far as the integrity of a judge is concerned”, but added that her views would have been “absolutely” acceptable if she was an ordinary citizen.

Van Staden emphasised that he did not believe that people who made statements akin to those of the judge should be charged, as this was against the constituti­onally-enshrined freedom of speech.

“Unless someone calls for violence – then it is a problem,” he said.

However, constituti­onal law expert Professor Shadrack Gutto contended that there should be limits to freedom. “Those limits should factor in the equally important right to dignity, which the judge impinged on with her sweeping comments about a racial group,” he said.

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