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#MabelJansen, as sober as a judge

By Sheena Jonker

The idiom speaks not just of a lack of intoxication but of the clarity of mind that we associate with being a judge. We can also say that sobriety is about being solemn, which encompasses dignity, honesty, a sense of decorum and profound sincerity.

So we get Judge Mabel Jansen and her year-old public (and private) comments on social media. What she has done is to reveal some of the innermost workings of her mind and her beliefs. We don’t often get to know what judges really and subjectively think.

As a restorative justice practitioner I honestly believe that people offend or make poor choices that cause harm to others for one of two reasons: lack of knowledge (or ignorance) or sickness of the soul. The one requires teaching and the other healing.

So what about Judge Jansen? Is she ignorant? Or is her soul marred by the hateful racism that seems to be pervasive now that the proverbial Band-Aid of the “rainbow nation” is off?

It’s not easy to read through the public comments she made on Gillian Schutte’s page without a profound sense of disbelief that a high court judge not only holds these beliefs, but that she is also brazen enough and thinks it is in order to reveal these beliefs on a public platform. There were inbox messages too. But I’m limiting this to her public comments.

Image - eNCA YouTube

Image – eNCA YouTube

Restorative justice mechanisms are invoked to help accomplish justice. To make things right again. To bring about healing for both victims and offenders. On the face of it, there has been a serious affront here. This is to be investigated by the Judicial Service Commission. Before we even get close to any notions of restoration and healing, the status quo (ie that she holds a position on the bench) requires interruption. And that is what has happened. She is on special leave and her conduct is being investigated.

Personal shock and disbelief aside, let’s take a look at some of her public comments on Schutte’s page. And then let’s take a look at some of the aspects of the code judges are subject to. Here are some of her more concerning public comments:

“ … 99% of criminal cases I hear is of black fathers/uncles/brothers raping children as young as five years old. Is this part of your culture? … Because then you do not know the truth. And they do it to their own children, sisters, nieces, etc. Is this also attributable to white people-somehow-because we take the blame for everything”.

“Fact: black children and women are raped and abused and beaten by black men to an extent that is so sickening that one cannot even cope with it. And that is a fact” and “want to read my files: rape, rape, rape, rape of minors by black families. It is never-ending”.

“No Marleen. I am a judge of the Pretoria High Court. Yes-there are many white molesters but our culture has never been that it is perfectly in order”.

“Show me one black woman who has not been molested herself … but culturally that is the viewpoint”.

“If I really had to take you on about different black cultures you would not be able to answer my questions. I happen to have studied the subject in depth and also understand most indigenous languages”.

“Apparently sex simply to be had when required. And five years old, by the way, is old … apparently it is not regarded as rape, but the exertion of a male’s right” in response to Schutte’s assertion that the majority of black males and uncles do not rape five-year-olds.

The discourse is generally littered with sarcastic and belittling assertions and enquiries such as asking a black female why she straightens her hair and stating that she feels like she is dealing with advocates who have not prepared their cases.

Here are some relevant aspects of the judicial services code:

Article 4 Judicial independence and specifically the duties to

a) uphold the independence and integrity of the judiciary and authority of the courts; and
b) maintain an independence of mind in the performance of judicial duties.

Article 5 To act honourably and specifically that 2) all activities must be compatible with the status of judicial office.

Article 7 Equality and specifically to a) avoid and disassociate him-or herself from comments and conduct by persons subject to his or her control that are racist, sexist or otherwise manifest discrimination in violation of equality guaranteed in the Constitution and d) in performance of judicial duties refrain from being biased or prejudiced.

Article 9 Fair trial.

We have to enquire specifically whether Jansen’s utterances have harmed or are likely to harm the public perception relating to the presumption of innocence and the audi alteram partem rule (hear the other side or the right to be heard) as well as the perception of the manifest impartiality of the judiciary.

Article 10 Diligence and specifically the duty to investigate the matter at hand thoroughly especially at the level that her utterances may lead to a lack of confidence that the judiciary investigates matters at hand apart from and independently of personal bias.

Article 11 Restraint generally and specifically the duty to not enter public debate about a case and the duty to, when participating in public debate on legal subjects and the like to not express views in a manner which may undermine the standing and integrity of the judiciary.

Obviously judges are also bound by constitutional provisions relating to dignity, equality and fair-trial rights and we need to ask how her conduct has or is likely to harm public perception that all of these imperatives are upheld by the judiciary.

Fatalism shuts down hope. When we stereotype, categorise and label, we say, that’s just how things are. Judge Jansen has stereotyped black males, black culture and the resignation to all of it of black females. So obviously the concern is whether if a black male accused is before her she has applied this revealed fatalistic mindset to him in her court room. It would be very difficult to imagine that she wouldn’t. Especially for the public. And her revelation that these are beliefs she holds must surely shake our confidence, at the very least, in her ability to uphold the required code that binds judges, but by extension, it shakes our confidence in the whole system.

Part of protecting and advancing the rule of law and our constitutional regime is to develop, advance and protect the notion that all who encounter or have dealings with the justice system – accused persons, legal officers, civil disputants, the public and the like – should have a growing sense that they are in fact dealing with a just system.

One of the most important features of a just system is that in court, you will actually be heard. The stereotyping of black males and black culture is a direct and devastating assault on that right.

So back to sobriety. Being clear-minded, solemn, dignified and sincere. What about civility? Speaking of the constitutional requirements of civility and fair dealing, former Constitutional Court judge Albie Sachs in The Strange Alchemy of Life and Law writes that constitutionally-created institutions need constantly to be nurtured if they are to function well. This requires that those who exercise public power should avoid wherever possible acting in a manner which may unduly disturb public confidence in the integrity of the incumbents of those institutions.

Has Judge Jansen preserved the standards required of her by the judicial code? Has she upheld constitutional imperatives and values? The Judicial Service Commission will decide. But we live under a constitutional democracy that would function best as a participatory democracy. And participation requires of the demos or citizenry that it thinks, really thinks and it’s a good time in history to do just that.

Sheena Jonker is an academic lawyer and practitioner of restorative justice and alternative dispute-resolution methods. She is the founding head of ADR Network SA as well as Access to Justice, a non-profit organisation that exists to mobilise legal and dispute-resolution resources for poor communities and in public-interest matters.

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    • William

      Oh, the need to crucify someone for being racist! How about crucifying Ntokozo Qwabe?

      Anyhow, judges are human beings. Imperfect, just like the rest of us. They have private lives and private thoughts. But what they are required to do, above all, is apply the law impartially and fairly. So, let’s have a look at Her Honour’s judgments. Have they been found wanting in any way that infers a racism? Have there been appeals against her judgments based on anything remotely connected to racist bias? No? Then she has done her job and done it at least adequately.

      South Africa is so thin-skinned these days that they play the racism card left, right and centre. There are so many other REAL problems facing the nation but energy and focus are brought to bear on hurt feelings to the detriment of action on education, training, health, infrastructure, unemployment. REAL things.

      So for the sake of the discussion, allow me to me play the racist card. If she was black and had said these things about whites, would there be an uproar? If so, would it persist any longer than the flash of a shooting star?

      I think that Mabel Jansen is going to be the Chris Hart of the judiciary.

    • 1Zoo1

      “One of the most important features of a just system is that in court, you will actually be heard. The stereotyping of black males and black culture is a direct and devastating assault on that right.”

      No it isn’t.

      Whether you are heard or not is an objective issue. That is also why we have an appeals system in place to rectify any problems in the courts. This system works by the way – see Oscar Pistorius.

      The judge is horrified at the amount of rape cases she has to deal with. Is that not the most important aspect of this entire debate?

      And all you have are the chosen excerpts by GS, not the full conversation.

    • Grumpy

      Nothing anyone says, ever, offends me, not ever. In my view, a verbal offence can be offered, knowingly or unknowingly, but it has to be accepted in order to cause offence. An offensive remark, if accepted, can cause great emotional harm, BUT ONLY IF IT IS ACCEPTED. Rather challenge the remark and get to an understanding as to WHY such a remark was made, for without such a challenge, you cannot expect to ever change the view of the individual making such remarks.

    • douglas dereuck

      I agree with her.

    • Barry Saayman

      “So for the sake of the discussion, allow me to me play the racist card. If she was black and had said these things about whites, would there be an uproar?” – Unknown.

      Injurious allegations villainising all whites as racists or settlers etc. in terms of the ongoing National Democratic Revolution are in fact general and should be met with well-reasoned reactions based on facts, and not merely emotional outpourings, because people that participate in public discourses should think for themselves and disallow opinion-makers and/or manufacturers of consent [re The Political Economy of the Mass Media (1988), by Edward S. Herman and Noam Chomsky] with sometimes hidden agendas to prescribe to them what they should think, believe or feel.

      Since the publication of that seminal work by Herman et al the world gained powerful and influential electronic social media with its pros and cons – one of the negative and scary aspects of social media is the ease with which it is abused by all kinds of bullies to destroy individuals-

      ‘How One Stupid Tweet Blew Up Justine Sacco’s Life’ – By JON RONSON – FEB 12, 2015

      In my opinion especially judges and magistrates will be well advised to under all circumstances stay clear of social media. It has been proven a hostile, unfriendly and unforgiving space.

    • Pieter Barendse Botha

      What are the real facts of the matter ie NON POLITICAL INFUSED HARD PROVEN FACTS ??????????

    • brent

      I read J Schutte’s article in the Sunday tribune this week end; ‘why I exposed judge jansen’. She starts of by saying Jansen contacted her for HELP, claimed 99% of cases she presided over were about rape and child abuse of Black women and girls. My question is what did Schutte do about this plea for help (Jansen has two adopted black kids so is ‘at the coal face not an intellectual elite social activist) to stem the rape/violence of Black women girls? Answer seems to be zero, better for her to out a racist (who will get what she deserves for her outbursts) than do anything to assist Black women/girls being abused.
      Another point: why did it take over a year for the rage/anger to surface against jansen? Answer, we are close to an election now so it is grist to the politicians poliitcal aganda to stir up the racials barriers and hatreds.

    • Sibusiso

      Posted elsewhere on this issue……

      Eleven (11) countries with the Highest Rape Crime Rates in the World-

      11. Australia – Rape incidents per 100,000 citizens: 28.6

      10. Grenada – Rape incidents per 100,000 citizens: 30.6

      9. Nicaragua – Rape incidents per 100,000 citizens: 31.6

      8. Costa Rica – Rape incidents per 100,000 citizens: 36.7

      7. Suriname – Rape incidents per 100,000 citizens: 45.2

      6. Sweden – Rape incidents per 100,000 citizens: 63.5

      5. Bermuda – Rape incidents per 100,000 citizens: 67.3

      4. Swaziland – Rape incidents per 100,000 citizens: 77.5

      3. Lesotho – Rape incidents per 100,000 citizens: 82.7

      2. Botswana – Rape incidents per 100,000 citizens: 92.9

      1. South Africa – Rape incidents per 100,000 citizens: 132.4 (Novicio, 2015)

      If the above information is correct it will in my opinion be safe to say that Swaziland, Lesotho, Botswana and South Africa have rape cultures due to the demographic realities in those countries.

    • RSA.MommaCyndi

      Unfortunately, judges never seem to be held accountable for anything. Their conduct is simply put into a never-never system until the public forget about it. Every instance results in a paid holiday, that only ends when they finally retire, and the case gets dropped.

      I do feel that Judge Jansen’s cases should all be reviewed and reassessed – urgently. There is a chance that her personal views did not bias those who came in front of her, but there is more of a chance that they did

      As much as I detest Jansen’s views, this is obviously something that she (albeit wrongly) has deduced from the cases that come before her. To that end, it has to be asked what kind of psychiatric assistance is given to judges? To hear nothing but the worst of humanity, day in and day out, must take a terrible toll on one. How many other judges are jaded and have skewed views of humanity?