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When a judge courts racism

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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. She has been placed on special leave following the revelation of a Facebook conversation that took place in May last year. Deputy Minister John Jeffery and gender specialist Mbuyiselo Botha give voice to the widespread shock and indignation engulfing the nation

John Jeffery

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.

Dear Judge Mabel Jansen

I write to you as a black man who has spent over two decades working to eradicate violence against women and children. I find your assertion that rape is an inherent feature of “black” culture deeply hurtful, demeaning and offensive. I have worked with men and boys at different levels, in a personal and a professional capacity, and the majority of those I have engaged with do not see rape and murder as “a pleasurable pastime”.

And I have never come across a black man who has justified sexual violence on cultural grounds. On the contrary, I have encountered high levels of contrition among those convicted for such crimes. All of this tells me that a racialised explanation for sexual violence is not only short-sighted, it is also dangerous.

I have, over the years, heard variations of the following: “You do this work because you think rape is a black thing; white people are using you to get to us.” I have been accused of being a “confused” black man, being played by white men for their own agendas.

This is, of course, nonsense. But here you are, affirming this false belief. Your words have given credence to the notion that the gender rights sector is really about disrespecting and demeaning black men. I am shattered! How can you undermine our efforts to eradicate violence, to create a more just and peaceful society – as a person and as a member of our judiciary?

You should know that rape and murder are not “black” things; they are not a product of a backward, savage culture. Black women would never knowingly allow a man to have sex with their daughters; they are not, as you claim, “brainwashed” to think that “it is the fathers’ birth right to be the first”.

I know of mothers who would kill anyone who even contemplates violating their child, who would do anything to ensure their offspring’s safety. It is outrageous – despicable even – that you think black mothers would allow their husbands to sleep with their daughters.

It angers me further that you want to justify your racist sentiments by giving us a so-called context. What context could there be? It is obvious that your opinion is not based on reliable research or on hard facts; it is merely conjecture about the inability of black men to keep their zips up.

Even if, as you claim, you were referring to specific court cases, these would not allow you to reasonably conclude that rape is a “pleasurable pastime” for black men. Such a conclusion is, at best, a generalisation – an offensive one. You comments reminded me of former president Thabo Mbeki’s comments on how the West characterises black men’s sexuality: “[The West is] convinced that we are but natural-born, promiscuous carriers of germs, unique in the world.

They proclaim that our continent is doomed to an inevitable mortal end because of our unconquerable devotion to the sin of lust.” Judge Jansen, you have bought into these stereotypes; your words have given weight to racist assumptions about black men.

All of this makes me wonder about the sort of justice you been dispensing, especially to the black men you convicted of rape. I do not think you fully understand what the Constitution says about individual rights and dignity.

You have done a disservice to those who still believe the judiciary to be the embodiment of the ethos of our Constitution. You have clearly been socialised to believe that black people are inherently inferior and criminal, and that black men are uncontrollable sexual beasts.

Your actions demonstrate the urgent need for us to transform our judiciary so that we are able to decisively root out die-hard racists such as yourself.

The sad truth is that your assertions have undermined the valuable work we are doing with men and boys. I hope you will find it in your heart to apologise unreservedly, without offering your so-called context. There is nothing you can say that would rationalise the hurt you have caused to me and millions of other black men.

Yours truly in gender struggle and in the quest for justice, Mbuyiselo Botha

Botha is commissioner at the Commission for Gender Equality and media specialist at Sonke Gender Justice.


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