Juge Mabel Jansen. Picture: SUPPLIED
Juge Mabel Jansen. Picture: SUPPLIED

DURING my brief stint as a public defender — a lawyer provided free of charge for criminal accused — I picked up a client. Let’s call her Mrs Cohen.

A well-to-do pensioner, Mrs Cohen had been arrested for stealing a packet of Eet-Sum-Mor from Pick n Pay.

She told me she had been doing her shopping when her daughter phoned. It was noisy inside the store and, being a bit hard of hearing, she walked outside to finish the call. She just forgot to put the packet of biscuits back on the shelf.

She could have been my own granny, with her cashmere cardie and her discreetly magnificent diamonds. We went straight to the control prosecutor to "make representations". It took less than five minutes to convince him it was all a big mistake and the charges were dropped.

Later, having a cup of tea with my colleagues, I mentioned the case and was greeted with knowing grins: "Ah, our friend Mrs Cohen!" Turns out Mrs Cohen was well-known to the more seasoned public defenders. She had been picked up for shoplifting a few times. Each time, she had the same story. Each time, she got off. She had never once appeared before a magistrate.

Mrs Cohen showed me the kind of subconscious prejudices we all have. Everyone — I, the previous public defenders and prosecutors — had all reacted in the same way. If Mrs Cohen had been a young black man in a spotie, instead of with a blue rinse, I would still have made representations (I was always in that office wheedling and cajoling for clients). But would I have believed him so easily? Would the prosecutor?

I’ve been thinking about Mrs Cohen a lot as I process my shock over the Judge Mabel Jansen allegations. If you missed the scandal, a brief summary: in a string of Facebook comments to journalist-film maker Gillian Schutte, Jansen claimed rape was part of black culture "and gang rapes of baby, daughter and mother a pleasurable pastime". I keep hoping she will come out and say she was hacked.

For a judge — a judge, the ultimate guardian of our constitutional values — to say such terrible things is severely damaging to the reputation of the judiciary. Questions swirl in my mind: how did it happen? How many racist judges and magistrates are there out there? Is this case an exception? If not, what kind of checks could be put in place to ensure it does not happen?

I fear Jansen is not an exception, even if she is an extreme case. To treat it so would be too easy, it would allow us to escape confronting something uncomfortable. Instead, I suggest we invert our thinking. We should not start from the premise that when judges don their robes and bibs they stop being human and put aside all their prejudices. The premise should be that every judge has prejudices.

This is SA, after all. We may have a beautiful Constitution, but we are nowhere near uhuru yet. This is a society replete with racism, some obvious and some hidden.

Just look at some of the reaction to the Jansen story. I have read so many variations of "yes, it was wrong to say it. But it was a private conversation."

No. It was wrong to think it. In Jansen’s case, I was struck by the urgent tone of the messages. She seemed horrified by some of the cases she had to preside over.

In a different context, former Constitutional Court Justice Johann Kriegler once said being a high court judge was not the hardest job in the world, but it was one of the loneliest. Judges carry a huge responsibility — their decisions profoundly affect lives — and they do it alone.

Sometimes when people are under strain, when they don’t know what to do, they instinctively revert to how they were raised. Racists may lose their courtesies under pressure. In the early days of SA’s constitutional democracy, people were more willing to accept they may subconsciously harbour racist prejudices. There used to be diversity training for judges.

The judiciary needs to go back to that. Judges should have ongoing training to make introspection second nature. We all should. But judges more so, because so much depends on it.

Rabkin is law and constitution writer