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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