The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
When a judge expresses bigoted views about an entire group of people based on their race, gender, sexual orientation or another such characteristics, it taints not only the judge involved, but also the judicial system in which that judge serves. It is for this reason that it is untenable for an openly racist, sexist or homophobic judge to remain on the bench.
On Tuesday Gauteng Judge President, Dunstan Mlambo and judge Mabel Jansen agreed to ask the Minister of Justice to place judge Jansen on special leave. This is a necessary first step to safeguard the integrity of the judiciary after the racists opinions posted by judge Jansen on Facebook became widely known over the weekend.
On Facebook, judge Jansen expressed shockingly racist views about black people. Using trigger words known to anyone with a vague understanding of racism (“in their culture”, “they”) she expressed views which would lead any reasonable person to question her ability to make impartial and fair decisions in all cases that come before her.
As the Constitutional Court explained, where there is a reasonable apprehension of bias on the part of a judge, it impacts on the integrity of the judiciary. When a judge says or does something highly problematic it therefore does not only impact on the credibility of the decisions taken by that judge, but also runs the risk of casting doubt in the eyes of ordinary citizens on the ability of the judiciary as a whole to interpret and apply the law and the facts fairly and impartially.
Judges are therefore held to a higher standard in both their professional and private lives than most other individuals. It is expected that judges would act with some wisdom and circumspection, but what can be done if a judge fails to live up to these expectations?
The conduct of judges are regulated by the Code of Judicial Conduct which was adopted in terms of section 12 of the Judicial Service Commission Act.
Article 2(3) of the Code allows anyone to lodge a complaint with the JSC about any “wilful or grossly negligent breach of this Code” by a judge or acting judge. There are several provisions in the Code which could potentially be invoked in an impeachment case against judge Jansen.
Article 4 of the Code requires a judge to uphold the independence and integrity of the judiciary and to maintain an independence of mind in the performance of his or her duties. Where a judge, either in public or private, expresses bigoted generalisations about a group based on their race, gender, sexual orientation and the like, the judge is failing – both as a matter of fact and of perception – to maintain independence of mind. Such action can threaten the independence of the judiciary as a whole.
Furthermore, article 5 of the Code requires a judge:
always, and not only in the discharge of official duties, [to] act honourably and in a manner befitting judicial office. All activities of a judge must be compatible with the status of judicial office.
The posting of messages on Facebook that contain stereotypical, racist generalisations about people is not compatible with the status of judicial office. It will bring the individual judge and the judiciary into disrepute. The Code is clear that the requirement to act honourably extends to the private life of a judge and it would be no defence to argue that the objectionable statements were not made in a court but in a “private” discussion on Facebook. (Of course, only a fool would believe a discussion on a Facebook wall is private.)
Article 7 of the Code further states that:
A judge must at all times: personally avoid and dissociate him- or herself from comments or conduct by persons subject to his or her control that are racist, sexist or otherwise manifest discrimination in violation of the equality guaranteed by the Constitution.
A note to the this article in the Code reminds judges to strive to be aware of and to understand the many differences between persons and to remain informed about changing social attitudes and values. It also reminds judges that the multi-cultural nature of South African society calls for special sensitivity for the perceptions and sensibilities of all who are affected by court decisions.
Any person may lodge a complaint against a judge with the Judicial Conduct Committee (JCC) on the basis of a breach of any of the articles contained in the Code. Where the allegation relates to incapacity on the part of a judge giving rise to a judge’s inability to perform the functions of judicial office in accordance with prevailing standards, or gross incompetence, or gross misconduct, as envisaged in section 177(1)(a) of the Constitution, the judge could be impeached.
In the light of the substantive provisions in the Code quoted above, it is difficult to imagine that the JCC will not find that the remarks made by Judge Jansen constitute a prima facie case of gross misconduct on the part of the judge. The JCC has in fact on a previous occasion found that racially inflammatory statements made by judge Nkola Motata constituted such a prima facie case of gross misconduct.
The Judicial Services Commission Act creates a two stage process for the disciplining of judges..
First, the Act establishes a Judicial Conduct Committee (JCC), who must receive and consider all complaints against judges. The Committee comprises of the Chief Justice (who is also the chairperson of the Committee), the Deputy Chief Justice, and four other judges, at least two of whom must be women, designated by the Chief Justice in consultation with the Minister.
The JCC considers a complain against a judge and decides whether a prima facie case of gross misconduct exist which must be referred to the Judicial Conduct Tribunal for a full hearing.
As the JCC comprises only of judges, the judiciary retains some control over the disciplining of judges, which seems appropriate to me. The Chief Justice will usually have a deciding vote if those members of the JCC present at a meeting are deadlocked. The establishment of Judicial Conduct Committee will therefore remove some of the politics out of the JSC’s consideration of complaints against judges.
Where the JCC makes a finding that the complaint prima facie indicates incapacity, gross incompetence or gross misconduct on the part of the judge, the JCC may refer the matter to the Judicial Conduct Tribunal (JCT) or may decide that it does not constitute an impeachable offence, in which case it will refer it to the Chairperson (usually the Chief Justice) for an inquisitorial inquiry. In the latter case the Chairperson may then impose remedial steps on the judge after conducting a hearing.
If the JCC decides that there is a serious case to answer that may lead to impeachment (as in all probability would be the case regarding judge Jansen) it will refer the matter to the Judicial Conduct Tribunal (JCT) which consists of two judges, one of whom must be designated by the Chief Justice as the Tribunal President; and one person who is not a judge but whose name appears on a list of persons who have been approved by the Chief Justice, acting with the concurrence of the Minister of Justice. The JCT is therefore dominated by judges — not by politicians or non-judges.
The JCT will then hear evidence and in an inquisitorial process try to determine where the truth lies. The aim would be to get to the truth behind the complaint and there would be no onus on any of the parties to prove or disprove any fact. In other words, the formal rules that apply in an accusatorial system would not apply and the aim of such an inquiry would be to get to the bottom of the complaint against the judge.
This is important as this would make it impossible for the Tribunal to reject a complaint merely because a judge provides a different version of events than the complainant or claims that his or her intention was not to act in breach of the Code. At such a hearing the judge would be able to lead evidence and have witnesses cross examined. The Tribunal may also subpoena witnesses and order them to produce any documents relevant to the inquiry.
However, at the moment it will not be possible for the JCT to hear the case of judge Jansen as an appeal is pending to the Constitutional Court about the constitutional validity of the JCT.
This appeal was lodged by two judges of the Constitutional Court – Nkabinde j and Jafta J – who were called to testify at the Tribunal set up to try Western Cape Judge President John Hlophe. One of the arguments advanced by the Justices is that section 24 of the Judicial Service Commission Act was unconstitutional because it permitted a prosecutor to be involved in the collection and leading of evidence before the JCT. This, they argue, is in breach of the doctrine of the separation of powers and affects judicial independence.
The Supreme Court of Appeal (SCA) dismissed their case in March, but as it is being appealed to the Constitutional Court, the JCT cannot hear a case referred to it by the JCC until the Constitutional Court has dealt with the matter and has answered the question of whether the JCT is unconstitutional or not.
In terms of section 177(3) the President is empowered to suspend the judge while the process before the JCC and JCT is underway, but only on the advice of the JSC.
After the JCT eventually hears the case, it would have to report to the properly constituted JSC on its findings and would also have to provide the JSC with all the relevant documents relating to the case. The JSC would then be empowered to decide to accept or reject the findings of the Tribunal as the JSC is the body constitutionally required to decide whether it wants to recommend impeachment of a judge to the National Assembly.
It would not be easy for the full JSC to reject the findings of the Tribunal as this may affect the legitimacy of the JSC in the eyes of the public. If the JSC endorses a finding of gross misconduct against the judge it must recommend that the judge be impeached by the National Assembly.
The support of two thirds of the members of the National Assembly is required to impeach the judge and have him or her removed from office. No judge has ever been impeached in South Africa and removed from office. Will judge Jansen be the first?BACK TO TOP