14/02/2017 16:51 SAST | Updated 14/02/2017 18:09 SAST

What Now For Judge Mabel Jansen?

A tribunal is to investigate complaints against Judge Jansen, but it will be a long time before we hear if she will be removed from the judiciary.

Judge Mabel Jansen

The Judicial Conduct Committee (JCC) has recommended that a tribunal investigate complaints of racism against Judge Mabel Jansen. However, the procedures are tied up in several legal processes.

On January 31, the JCC, consisting of Judge Bess Nkabinde, Judge Visvanathan Ponnan, Judge Mahube Molemela, and Judge Nare Kgomo, convened a meeting in which it was unanimously decided that race remarks made by Judge Mabel Jansen constituted a prima facie case of "gross incompetence" and resolved to recommend that the complaints be investigated and reported on by a tribunal. However, the tribunal cannot take place until a pending challenge in the Constitutional Court to the tribunal has been finalised.

The committee reached this decision taking into account three distinct points:

  1. The complaints against Judge Jansen "provoked genuine outrage in a fair cross section of individuals and organisations" in South Africa.
  2. Her statements "suggest that she make harbour certain preconceived biases and potentially at least may not be able to bring an open and impartial mind to bear when determining matters that come before her involving a particular sector of our society"
  3. The perception that she lacks impartiality, whether this be true or not, "does little to enhance public trust, respect for and confidence in the judiciary and our judicial system" and could "tarnish the image of the judiciary".

Complaints against judges are dealt with by the Judicial Service Commission (JSC), particularly by its JCC and Judicial Conduct Tribunal.

Complaints of misconduct must first be heard by the JCC, and if a complaint is serious enough, it refers it to the tribunal. Only After the case has been heard by the tribunal is it then passed on the JSC, which must decide whether or not to make a recommendation to Parliament. The final decision to remove a judge from the judiciary sits in the hands of parliamentarians. These laborious processes of the bureaucratic baton being passed from one institution to another are stipulated under the Judicial Service Commission Act. Suspended judges cannot be removed from the payroll unless they are removed from the judiciary. Basically, what this means is that Judge Jansen, among other suspended judges with pending disciplary action including Judge Nkola Motata, are being paid taxpayers' money while sitting at home, waiting on legal processes which are currently in gridlock.

Until 2008, the JSC directly handled complaints of misconduct of members of the judiciary. However, due to many defeats and much criticism the JSC has suffered with regard to its handling of complaints, the JCC was established under amendments to the Judicial Service Commission Act of 1994. The JCC was established with the intention of removing some of the politics out of the JSC's consideration of complaints against judges.