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How does the JSC deal with complaints against Judges

How does the JSC deal with complaints against Judges

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.

Download a copy of the Judicial Code of Conduct 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.

Download the Judicial Service Commission Act here.

Read the media statement from the JSC on Jansen here. 

Read the Judicial Service Commission Act 9 of 1994 – Regulations and Notices – Government Notice R864 here.

Read the full text of the transcript of the Judicial Service Commission interview with Adv M M Jansen, October 2013 here.

 

Comments (13)

  1. London Judge
    May 10, 2016

    she must be impeached.

    • Norman McFarlane
      May 11, 2016

      She will be, but for the wrong reasons.

    • Eben Snyman
      May 12, 2016

      I don’t agree with LONDON JUDGE

  2. former prosecutor
    May 10, 2016

    This is a serious violation Article 7. Her perception of black people clouds her judgement and warrants impeachment.

  3. Anonymous
    May 12, 2016

    She must be impeached, she’s not as emotionally intelligent as she should be in order to carry out her duties.

  4. Eben Snyman
    May 12, 2016

    The Judge have based her comments on the matters that she have been dealing with over a period of time. In my opinion she has been mindful rather than seeking sensation. In fact, it rather appears that she was seeking help and was led into a trap.

  5. Thembile Dingiswayo
    May 13, 2016

    I suggest that the Magistrates Act be repealed and magistrates be incorporated into the Judicial Services Council. The incorporation can be done through the passing of the a law called Lower Courts Act where even the term “magistrate” is discarded from our vocabulary. The reason for this request is that Magistrates Court Act was passed before the Constitution and that magistracy was inherited from the British.Magistates were introduced in South Africa by the British to dislodged the tribal chiefs and to subject Africans to British colonial rule.There is no justification to cling to colonial structures that do not advanced our constitutional democracy.Magistrates are not considered by the Chief Justice as part of the judiciary and this causes huge prejudices to the incumbents of positions of magistrates. The same can be said with our parliamentary structure and hierarchy. There was no need for South Africa to cling to British parliamentary arrangements.The parliamentary system is at odds with the constitutionalism envisaged by our Constitution. The Constitution should have provided for the appointment or election of apolitical and independent Speaker of Parliament. The omission to provide for such independent arbiter in the legislature has come to haunt South African and is the source of all parliamentary confusion and chaos which plays itself out in the present day South Africa.
    Magistrates have the competence to pass life sentence and the fates of the vast majority of our people is placed in the hands of people who are not regarded as forming part of the judiciary. It might well be argued that it is unconstitutional that citizens of this country appear before magistrates courts as the magistrates do not for part of the Judicial Services Council.For instance there is no system or structure in place in the Magistrate Commission that deals with discipline and ethics of magistrates. There is nothing that is done to punish magistrates who commit atrocities like murder, robbery, theft, corruption and nepotism. Instead simulated and quasi ethics committee sits only if it wants to target individuals within the magistracy who are critical and vocal about certain injustices perpetrated within the Magistrate Commission. Discipline within the magistracy is approached with a kangaroo court-mentality where statements from anonymous and faceless people which statements not made under oath are used to intimidate and purge people who are considered undesirable out of the magistracy. It is a stated rule of thumb that complaints against Magistrates must be laid by depositing sworn affidavits but this is not the case in the Magistrates Commission.
    This perversion and illegality allowed by the continued exclusion of magistrates from the system that controls and remunerate judges fuel the notion that the Magistrate Commission can float the Constitution by infringing human rights and constitutionally guaranteed rights to fair labour practice and occupational security.

    • Judges Matter
      Judges Matter
      May 16, 2016

      Click here to find more about the process for sanctioning magistrates. This is handled by the Magistrate’s Commission.
      “The Magistrate’s Commission is a statutory body established in terms of the Magistrate’s Act, No. 90 of 1993. The Commission is chaired by a judge, designated by the President in consultation with the Chief Justice.
      The objects of the Commission are amongst others, as follows:
      • To promote continuous training of magistrates appointed in the Magistrates’ Courts [District and Regional Courts].
      • To advise the Minister regarding the appointment of magistrates.
      • To advise or to make recommendations to, or report to the Minister, for information of Parliament regarding any matter which is of interest for the independence in the dispensing of justice and the efficiency of the administration of justice in the Magistrates’ Courts.
      • To carry out investigations and make recommendations to the Minister regarding the suspension and removal from office of magistrates.
      Any conduct by a magistrate that is alleged to be improper may be reported to the Judicial Head of the Court wherein the magistrate concerned presides.
      A complaint against a magistrate must be reported by means of a written declaration under oath or affirmation, specifying –
      • the nature of the matter;
      • the grounds on which an investigation is viewed necessary;
      • the names of the magistrate, other persons involved and of any witnesses;
      • the date and time of the incident(s), and
      • all other relevant information known to the complainant.
      If the complainant is of the view that his/her concerns have not been properly or adequately addressed by the Judicial Head of Court, the complainant may direct his/her complaint to the Secretary of the Magistrate’s Commission at the following address:
      Secretary of the Magistrate’s Commission: Mr Godfrey Ramoroka
      The Meent Building, c/o Thabo Sehume & Pretorius Streets, PRETORIA
      P O Box 9096, PRETORIA, 0001
      Tel: +27 12 325 3951
      Fax: +27 12 325 3957/ +27 12 326 0094”

  6. Thembile Dingiswayo
    May 24, 2016

    Thank you. That is the the procedure which is foolproof and which cannot be piggybacked on by losing litigants who developed sour grapes after losing a case. Using sworn affidavits excludes the possibility of abuse of the complaints process by jealous colleagues or criminals who enjoyed no luck before the judicial officer who may be the subject of complaint.

  7. Tumisho Donald Mangoale
    Oct 25, 2016

    I need clarity on one issue. I have recently lodged a genuine complaint against one judicial presiding officer (Magistrate)for lying under oath. Submitted explosive documentary evidence outlining her unscrupulous behave not aligned with scope of her office. However, I was told that there are no merits in my case.

    I strongly felt that the matter was not objectively considered in light of evidence furnished and solely to protect respondent for unknown reasons save to avoid any forms for speculation.

    I, therefore, like to know if this kind of matter is appealable or reviewable?

    • Judges Matter
      Judges Matter
      Oct 27, 2016

      We are not able to give specific legal advice without a consultation, but a complaint can be laid with the Magistrates Commission. You can also ask the Magistrates Commission if they have an internal appeal procedure.

      According to the Department of Justice website:

      Any conduct by a magistrate that is alleged to be improper may be reported to the Judicial Head of the Court wherein the magistrate concerned presides.
      A complaint against a magistrate must be reported by means of a written declaration under oath or affirmation, specifying –
      * the nature of the matter;
      * the grounds on which an investigation is viewed necessary;
      * the names of the magistrate, other persons involved and of any witnesses;
      * the date and time of the incident(s), and
      * all other relevant information known to the complainant.

      If the complainant is of the view that his/her concerns have not been properly or adequately addressed by the Judicial Head of Court, the complainant may direct his/her complaint to the Secretary of the Magistrate’s Commission at the following address:
      Secretary of the Magistrate’s Commission: Mr Godfrey Ramoroka The Meent Building, c/o Thabo Sehume & Pretorius Streets, PRETORIA P O Box 9096, PRETORIA, 0001
      Tel: +27 12 325 3951 or Fax: +27 12 325 3957/ +27 12 326 0094

      You can find more information here: http://www.justice.gov.za/contact/cnt_mcomm.html

  8. Leston
    May 7, 2018

    Hi. What consequenses are there for Judges that flout the law and the Constitution.In my case a high court judge dissed my case without reasons in law. He also failed to uphold the general rule in terms of costs that was laid down by the Constitution in 2009 that was a bench mark ruling for constitutional character litigation. He also stayed my aplication for leave to appeal his cost order agains me , and wanted me to first pay the cost of the respondent before I could appeal the matter in a higher court. As far as I am concerned, he flouted my right to access to a higher court as is enshrined in the constitution. I eventually had his cost order replaced by the Constitutional court , with no order as to costs.

    • Judges Matter
      Judges Matter
      May 8, 2018

      Judges Matter is a coalition who monitor the judiciary and the judicial appointment process. As such, we are not an advice office and unfortunately, we cannot give advice or answer questions of substantive law.
      If you have a complaint or query about a judge you must contact the Office of the Chief Justice directly. You can find out more about the judicial complaints process here: http://www.judiciary.org.za/index.php/complaints
      We would suggest that you write a formal letter of complaint and submit it to the Office of the Chief Justice. You can also write a formal letter and submit it to the Judge President of the High Court where your matter was heard.

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