By Nomfundo Manyathi-Jele
Justice and Correctional Services Minister, Michael Masutha, placed Judge Mabel Jansen of the Gauteng Division of the High Court, Pretoria on special leave following a complaint laid against the High Court judge over her Facebook comments about black people and rape. Judge Jansen’s Facebook comments caused public outrage.
Black Lawyers Association President, Lutendo Sigogo, handing over the BLA’s memorandum on Judge Mabel Jansen to court manager Jeanette Ngobeni.
In a press release, the Justice Department said Minister Masutha’s granting of the leave follows the request from Judge President Dunstan Mlambo of the Gauteng Division of the High Court, to place Judge Jansen on special leave, pending finalisation of a complaint submitted to the Judicial Services Commission (JSC).
The minister also approved an acting appointment to fill the vacancy during this time.
The JSC also issued a press release stating that it notes with concern the public outcry of the social media posts attributed to Judge Jansen. It went on to state that ‘all judges are subject to the Code of Judicial Conduct, which serves as the prevailing standard for judicial conduct which judges must adhere to.’
Explaining what steps to take in laying a complaint against a judge, the JSC said: ‘A complaint of alleged misconduct against a Judge can be lodged with the Judicial Conduct Committee (JCC) by way of an affidavit or an affirmed statement specifying the nature of the complaint and the facts on which the complaint is based. Such a complaint will then be dealt with by the JCC in terms of the JSC Act.’
The JSC also confirmed that a complaint had been lodged by advocate Vuyani Ngalwana SC in his capacity as the Chairperson of the Advocates for Transformation and also in his personal capacity with the JCC.
On 12 May the Black Lawyers Association (BLA) delivered a memorandum to the court manager at the Gauteng division in Pretoria, Jeanette Ngobeni. The memorandum is addressed to the Judge President Dunstan Mlambo, but was delivered to Ms Ngobeni in his absence.
Handing over the memorandum the BLA president, Lutendo Sigogo, said the BLA demands –
Black Lawyers Association members at the Palace of Justice at the High Court after the BLA president delivered the BLA’s memorandum pertaining to racist remarks by Judge Mabel Jansen.
Mr Sigogo also said: ‘Judges are not law unto themselves. Judges account to the people of South Africa through the Constitution. This is why they must be careful of what they say in and outside courts. There are codes and laws which governs how they should conduct themselves, we expect Judge Jansen to be conscious to this moral expectation.’ Adding that Judge Jansen broke the oath of her office that she will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law. ‘To generalise and conclude that all black men are rapists is a racist remark outlawed by the Constitution. It shows her prejudice against black people as a whole. She cannot be trusted to adjudicate on criminal cases (rape and murder) involving black people either as culprits or victims,’ he said.
Meanwhile, several legal bodies have expressed their shock and concern. The Law Society of South Africa issued a press release urging the JSC to deal with the allegations of racism expeditiously and transparently, so as to not aggravate an already inflammatory and complex situation around the issues of racism in the country. In a press release Co-chairpersons Jan van Rensburg and Mvuso Notyesi said: ‘Racist comments as we have seen repeatedly this year – and more so from a judge – are polarising and traumatic for our society. Society demands an explanation.’
The KwaZulu-Natal Law Society (KZNLS) stated that it was ‘incomprehensible that a judicial officer should make such prejudicial utterances where such office is held to the highest account in upholding our Constitution and Bill of Rights.’ It added that it was ‘equally concerned that the judge’s alleged comments were only made public a year after they were made.’
The KZNLS said it was imperative that the JSC deals with the matter expeditiously in order to defuse the volatile atmosphere of repeated racist comments ‘under which we are all bearing heavily and against which all South Africans must emphatically stand and take measures to root out.’
In its press release, the National Association of Democratic Lawyers (NADEL) stated: ‘Section 165 of the Constitution of South Africa states that courts are subject only to the Constitution and the law which they are required to apply impartially and without fear, favour or prejudice. The South African judicial ethics state that in order for the judiciary to fulfil its constitutional obligation, the judiciary needs public acceptance of its moral authority and integrity. A duty is placed on judicial officers to maintain and protect the status of the judiciary. Judges are to refrain from expressing views in a manner which may undermine the standing and integrity of the judiciary.’
In the press release, NADEL goes on to state that Judge Jansen’s comments, if well founded, impugn the integrity, and undermine the independence of the judiciary adding that the alleged comments amount to a serious and gross misconduct that violates the Constitution and the judges oath of office to uphold, protect and apply the Constitution without fear, favour or prejudice.
NADEL goes on to state: ‘The statements further cast doubt as to her fitness to hold the office of a judge and her ability to execute her duties in a manner that will ensure that all those who appear before her will receive equal protection and the benefit of law. From her statements it is clear that she harbours racial prejudice against black males, believing them to be rapists and therefore guilty until proving themselves innocent. This mentality from a judge is a threat to proper administration of law and the culture of human rights which is enshrined in our Constitution.’
NADEL has also lodged a formal complaint with the JSC where it also requested the JSC to investigate the complaint against Judge Jansen and to take appropriate action to recommend that she be removed as a judicial officer as contemplated in s 177 of the Constitution.
Nomfundo Manyathi-Jele NDip Journ (DUT) BTech Journ (TUT) is the news editor at De Rebus.
This article was first published in De Rebus in 2016 (June) DR 16.
