The Social Media Tornado: "For Fools Rush in Where Angels Fear to Tread"**
Judge Mabel Jansen placed herself directly in the path of a possible social media tornado when she engaged in a debate on the Facebook page of self proclaimed social and anti-racism activist, Gillian Schutte, in May 2015. The initial comments that Judge Jansen made were not private, nor were they mailed to Schutte directly, and were available for the public to see at any time. Subsequently, she sent direct messages to Schutte via the Facebook Messenger application, reinforcing her various viewpoints and expanding upon them. There is no indication from either party that Schutte replied to these direct messages. It is clear that the Judge was an active social media user with a variety of accounts across various platforms.
Whilst the initial response from the Judge was that she had made the remarks confidentially, it is clear that, initially, the comments were made in a public forum. Having had sight of the posts contained in screen shots provided by Schutte, it seems that they were not "friends" in either the social media or traditional sense of the word. It is unlikely that Jansen would be able to argue an expectation of privacy regarding her initial posts when Schutte has over 1600 followers / Friends on Facebook and her page is accessible to the public.
As a Judge, Jansen is appointed in terms of the Judicial Service Commission Act ("the JSCA") and is subject to the Code of Judicial Conduct ("the Code"). In terms of the Code she is specifically required to: “…personally dissociate…herself from comments…that are racist, sexist or otherwise manifest discrimination…" Furthermore, although a Judge "may participate in public debate on matters pertaining to legal subjects… [s/he must] not express views in a manner which may undermine the standing and integrity of the judiciary." Judges are also not allowed to be involved in any political controversy or activity, belong to a political party or "take part in any activities that practice discrimination inconsistent with the Constitution…"
Media reports indicate that a complaint has been lodged with the Judicial Services Commission ("the JSC") and on 10 May 2016, Gauteng Judge President, Dunstan Mlambo, and Judge Mabel Jansen agreed to ask the Minister of Justice to place her on special leave so that she would not be on active duty as a Judge while the investigation was ongoing.
The process to be followed following the complaint is set out in the JSCA and is as follows:
If the Judicial Conduct Committee ("the JCC") decides that there is a serious case to be answered which may result in an impeachment, it will refer the matter to the Judicial Conduct Tribunal (“JCT”).
The JCT is constituted by the Chief Justice on instruction by the JCC. It must include two Judges and one further person who is not a Judge but has been pre-approved to serve on the JCT should the need arise by the Chief Justice and Minister of Justice.
Once the JCT hears the complaint, it presents its findings and all documents to the JSC, who either accept or reject their findings. If the JSC endorses a finding of gross misconduct against a Judge, it must recommend that the he or she be impeached by the National Assembly. Two-thirds majority support is required in the National Assembly in order to achieve an impeachment and removal from Judicial office. To date an impeachment of this nature has never occurred in South Africa. Whether Judge Jansen is the first remains to be seen.