How does the JSC deal with complaints against Judges
Recent social media messages made in an exchange on Facebook between Judge Mabel Jansen and film-maker Gillian Schutte have been widely criticised by legal and political actors. In these Facebook messages, Judge Jansen made various statements about black men and black people such as;
“In their culture a woman is there to pleasure them. Period. It is seen as an absolute right and a woman’s consent is not required.”
“I still have to meet a black girl who was not raped at about 12. I am dead serious.”
Since these messages have been made public many people and organisations, including the Democratic Alliance, have made appeals to the Judicial Services Commission’s (JSC) Judicial Conduct Committee for disciplinary action.
Judge Mabel Jansen sits in the High Court in Gauteng. As a sitting Judge she is subject to the jurisdiction of the Judicial Service Commission. A complaint may be lodged with the JSC in terms of the regulations to the Judicial Service Commission Act.
For a judge to be impeached (i.e. removed from office), 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 an inquiry would most likely examine whether Judge Jansen’s Facebook comments constitute gross misconduct. Complaints to the JSC against Judges can be broader however if they are considered to be about violations of the Judicial Code of Conduct but may not result in the judge being impeached.
Once a complaint has been received, it will be dealt with by the JSC’s Judicial Conduct Committee. Serious, but not impeachable misconduct may be dealt with by ordering remedial steps including an apology, a reprimand, counselling or training.
If the JSC’s Judicial Conduct Committee decide that the conduct may warrant impeachment, then a Judicial Conduct Tribunal will be convened, and based on the tribunal’s report the JSC decides whether the criteria for impeachment are met. If the Tribunal finds the judge should be impeached, they then refer the finding to the National Assembly. In the case of impeachment, the National Assembly must have a two thirds majority vote, at which point the judge is formally removed from office by the President. If the National Assembly does not vote in favour of impeachment the judge may still be sanctioned for lesser misconduct.
The Democratic Governance and Rights Unit has written an article with more details on the JSC’s procedure to deal with Judicial complaints. Read the full document here.
Relevant provisions within the Judicial Code of Conduct to note with regards to the complaint against Judge Jansen:
- Article 4(a): a judge must uphold the integrity of the judiciary.
- Article 5(1): A judge must always, and not only in the discharge of official duties, act honourably and in a manner befitting judicial office. Notes: “A judge behaves in his or her professional and private life in a manner that enhances public trust in, or respect for, the judiciary and the judicial system.”
- Article 7: A judge must at all times (a) personally avoid and dissociate him- or herself from comments or conduct by persons’ subject to his or her control that are racist, sexist or otherwise manifest discrimination.