What’s supposed to happen when a judge goes full-on racist?

Another week, another racist getting exposed on social media. This time, high court judge Mabel Jansen was revealed to have uttered some questionable remarks about black people in an exchange with an activist last year. Simone Matika spoke to CHRIS OXTOBY, a senior researcher with the Democratic Governance and Rights Unit at the University of Cape Town, about what procedures are in place to deal with judges who behave badly.

What usually happens when a judge gets into trouble?

There is quite a process. So first up, judges have a code of conduct that they are expected to follow. If there is a complaint that they have failed to live up to that code of conduct, then that complaint gets made to the Judicial Service Commission (JSC). This complaint will be dealt with by the JSC’s Judicial Conduct Committee.

What processes need to be followed?

There is quite a variety of things that they can do, depending on the seriousness of the complaint. If it reaches the level of impeachment they [the JSC] will do an inquiry, and if they think the judge should be impeached, that gets sent to parliament. And then parliament has to make the final call on impeachment. Which means the judge will be kicked out of office completely if it’s something that’s serious. But if it is found not to be impeachable misconduct then it may be dealt with by ordering remedial steps including an apology, a reprimand, counselling or training.

What do you think will happen to Mabel Jansen?

There is definitely going to be a complaint. There will definitely be a sanction of some kind or another. I wouldn’t like to speculate at this stage whether or not it will rise to an impeachment level.

Besides being a racist, what else can she get in trouble for?

I think the content of her utterances, her attitude and the racial attitudes – that’s obviously going to be the biggest thing. One of the main issues, as commentators have pointed out on social media, is what these attitudes say about how she may have decided cases which involved black people, especially those relating to sexual violence. I think there is also an issue in that the Constitution is supposed to mark a break from our racist, discriminatory path, and judges are supposed to enforce and apply the Constitution. So to hear comments that, on the face of it, are completely inconsistent with the constitutional vision is very troubling.

Have we ever faced a similar situation?

We’ve actually never had a judge impeached in South Africa. So it’s fresh territory and there’s always a caution about taking someone out of office, obviously because of issues about the independence of the judiciary. But at the same time, the nature of what she said is extremely serious and it will be taken very seriously.

And how does an impeachment happen?

For a judge to be impeached, section 177 of the Constitution requires that one of three grounds are found to exist – that a judge suffers from an incapacity (e.g. illness), is grossly incompetent, or is guilty of gross misconduct. In this case, the inquiry will almost certainly be whether her comments constitute gross misconduct. If the JSC makes such a finding, then the National Assembly must vote for her removal by a two-third majority. On the basis of that resolution, she would formally be removed by the president.

What happens if there is no impeachment?

If the JSC were to decide that Judge Jansen’s conduct doesn’t warrant impeachment, then I’m sure that they would impose one or more of these remedial steps. If they decide that the conduct may warrant impeachment, then a tribunal will be convened, and based on the tribunal’s report the JSC decides whether the criteria for impeachment are met. If they are, a report is submitted to the National Assembly. If not, the judge may still be sanctioned for lesser misconduct.

Featured image by Nathi Ngubane