Judicial Tribunals show an urgent need for dealing with sexual harassment

Sexual harassment has been described as an ‘open secret’ in the legal community. Lawyers and judicial officers whisper about in corridors and chambers but hardly ever speak about it openly. But even when they do, there is not enough done to deal with the structural causes and impacts of sexual harassment – particularly on women, who are most often the victims.

Recent events, however,  have shone the spotlight on the issue, demanding urgent action to resolve it. Some solutions, like an overarching anti-sexual harassment policy, have been proposed but they now need determined leadership to see them through.

Grappling with sexual harassment as judicial misconduct

For two weeks in January 2025, the legal community held its collective breath, fixated on the graphic, harrowing testimony and cross-examination of Ms Andiswa Mengo, a judges’ secretary who has filed a judicial misconduct against Eastern Cape High Court Judge President Selby Mbenenge, accusing him of sexual harassment.

While still in its early days, the Judicial Conduct Tribunal into Judge Mbenenge has brought up searching questions over how sexual harassment – a form of gender-based violence and abuse of power – manifests and is dealt with in the South African judiciary.

…the Judicial Conduct Tribunal into Judge Mbenenge has brought up searching questions over how sexual harassment – a form of gender-based violence and abuse of power – manifests and is dealt with in the South African judiciary.

The technical legal definition, in terms of the Employment Equity Act of 1998 (EEA) and its Code of Good Practice, simplify it as ‘unwanted conduct of a sexual nature, expressed physically or non-physically, directly or indirectly, verbally or non-verbally, which ultimately impairs [the victim’s] dignity’. Not simple at all!

In light of this complexity, a considerable amount of the Tribunal’s time has been devoted to parsing through text messages, images and emojis, and physical interactions, between Ms Mengo and the Judge to try to establish if there was sexual harassment (or there wasn’t).

But even at this early stage, it is not altogether clear what specific metrics the Tribunal will use to assess the merits of this complaint. Will it focus on the narrow legal definition of ‘sexual harassment’ in the EEA and Code of Good Practice? Or will it focus on the more expansive definition of ‘judicial misconduct’ in the Code of Judicial Conduct, which includes a legal duty on a judge to act honourably, in both his professional and private life, including the avoidance of impropriety? These are uncharted waters, and regardless of its decision, the Tribunal will set a precedent for future cases. What is clear is that there needs to be a policy standard set for how judicial misconduct of a sexual nature is dealt with.

How sexual harassment is investigated matters

Beyond what the Tribunal is investigating, how the investigation is being conducted also matters. The sometimes-aggressive nature of how Ms Mengo was cross-examined by Judge Mbenenge’s legal team has also drawn some disquiet, with a fear that it will prevent future victims from stepping forward. On the other hand, others feel that, because of the high stakes involved (including potential impeachment for Mbenenge) it is necessary to test these allegations through vigorous cross-examination. Again, a clear policy standard needs to be set, to provide guidance for all tribunal investigations, and ensure fairness to both the complainant and respondent judge, and justice for all.

Beyond the technicalities, there is also a question of whether systemic problems like sexual harassment – a form of gender-based violence and abuse of power – can be dealt with through ‘normal’ disciplinary proceedings like the Judicial Conduct Tribunal?

This question is being asked in light of an ongoing investigation into another senior judicial officer, KwaZulu-Natal Regional Court President Eric Nzimande. He faces 50 counts of misconduct, including sexual harassment and abusing his power to appoint acting magistrates in exchange for sexual favours. Some of the acts complained of occurred within months of his permanent appointment as head of the country’s largest regional magistrates’ court system in 2011 and spanned several years thereafter. In light of this, there are serious questions of whether a separate investigation into systemic sexual abuses should be opened in this case. Read more about other sexual harassment complaints within the judiciary here. 

Sexual harassment and the legal community’s silence

Sexual harassment is an extremely taboo subject, making it hard to detect and combat. In 2024, Researchers at the University of Cape Town Law Faculty’s Democratic Governance and Rights Unit (DGRU, of which Judges Matter is part) released two complementary research reports which tried to look at the phenomenon. The first report, titled Isidima is based on an anonymous survey of 6 000 court users (lawyers, staff and lay people) in five rural and urban courts. A small (1.9%) but disquieting number indicated that they had either experienced sexual harassment themselves or know someone who did. Similarly in the second report titled Under Pressure – Magistrates’ Perceptions Survey, one in eight (13%) of 230 magistrates surveyed said they or a colleague they know was sexually harassed ‘once or twice’. Although both studies are inconclusive, they do indicate a perception of sexual harassment in the courts.

While women have legally been allowed to practice law for just over 100 years, the South African legal profession is still heavily male-dominated. According to business research firm Who Owns Whom, as at 19 April 2024, 55% (18 308) of 33 245 attorneys, 70% (7 251) of 9 676 advocates, 56% (116) of 254 judges, and 49% (910) of magistrates were men. A strictly hierarchical, conservative culture also makes the legal profession vulnerable to sexual and other forms of abuse such as bullying. Significantly, it breeds a culture of silence.

 ‘[S]exual harassment disproportionately impacts younger members of the profession – one in five respondents younger than 35 had been sexually harassed within the past year’ the IBA report found.

A 2019 research report by the International Bar Association titled ‘Us too? Bullying and Sexual Harassment’ noted that South Africa had a disproportionately higher prevalence of sexual harassment than the global average.  ‘[S]exual harassment disproportionately impacts younger members of the profession – one in five respondents younger than 35 had been sexually harassed within the past year’ the IBA report found. Furthermore, “[t]his misconduct resulted in 25% of sexual harassment targets indicating that the conduct contributed to them leaving or considering leaving their workplace”.  The IBA report confirmed an earlier research report titled ‘Transformation of the Legal Profession’  by Wits University’s Centre for Applied Legal Studies found sexual harassment – alongside racial, gender and class discrimination – is a key barrier to women’s advancement in the legal profession’.

Clearly, a broader conversation needs to be had about the pervasiveness of sexual abuse in the legal community, including its long-term harms on people’s careers, particularly that of women.

Clearly, a broader conversation needs to be had about the pervasiveness of sexual abuse in the legal community, including its long-term harms on people’s careers, particularly that of women. The General Council of the Bar’s stated intention to investigate sexual abuse allegations brought by a person outside the legal community against senior advocate Jeremy Gauntlett SC KC, should add impetus for the legal community to look inward.

So what is to be done?

Proposals for reform and redress

Researchers at the University of Cape Town Law Faculty’s Democratic Governance and Rights Unit (DGRU, of which Judges Matter is part) are currently undertaking a research project trying to understand the extent of sexual abuse and sexual extortion in courts in South Africa and Malawi.

Preliminary findings from focus groups, an online survey, and structured interviews with key informants, show a groundswell of support for key interventions to deal with the problem, including:

1. An independent, rigorous process for investigating complaints of sexual harassment and other abuses of power of a sexual nature. Such a process would ensure that there is a clear policy guideline for investigating complaints in a swift and efficient manner, and which gathers all the evidence necessary while protecting the dignity of all persons involved. Read more here.
2. While the court ecosystem has numerous role players who all fall under different legal frameworks (including judicial officers, prosecutors, private lawyers, court administrative staff, and outsourced staff such as cleaners and security), there should be an overarching policy that provides minimum guidelines to support alleged victims and those in authority responsible for receiving complaints. What’s clear from the research so far is that senior officials like court managers often don’t know to navigate this complex terrain.
3. Such a policy would also establish a reference group for dealing with complaints of sexual harassment. The reference group would assist in providing oversight over the implementation of the policy. This includes establishing a core group of skilled investigators and trained presiding officers who could be deployed to assist the Magistrates Commission and the Judicial Service Commission in dealing with all the nuances of sexual harassment cases.
4. The policy would also ensure minimum mandatory training is provided to sensitize all stakeholders on how sexual harassment manifests, how to report it, how to receive reports of sexual harassment, and how they should be dealt with.
5. In addition, the policy would provide minimum timeframes for investigating bodies to deal with complaints, the psycho-social support that would be offered to alleged victims, and standard procedures to guide the frequency of updates to the victim, but also how they would be treated throughout (including during cross-examination and other inquisitorial processes).
6. Similarly, the policy would ensure a standard manner of collecting and collating data around sexual harassment cases, and ensure that the data is monitored, analysed and frequently communicated in a transparent manner to all stakeholders.

Chief Justice Mandisa Maya has already undertaken to reviewing the current policy framework in the Judiciary, including developing a brand-new policy to combat sexual harassment. It is not clear how long this review will last but the events of the last few weeks clearly show the need for urgent action.

However, the task does not only rest on her shoulders, but the entire legal community also needs to come on board. This includes statutory bodies like the Judicial Service Commission, the Magistrates Commission, the Legal Practice Council, the National Prosecuting Authority, the voluntary advocates’ societies, and other organisations like the Law Society of South Africa. The research clearly shows that there is a pressing need for rigorous, sustainable solutions.

When it comes to sexual harassment, the legal community is at a moment of reckoning. Leaders need to take on the mantle and signal that they take this issue seriously, for the greater good.

When it comes to sexual harassment, the legal community is at a moment of reckoning. Leaders need to take on the mantle and signal that they take this issue seriously, for the greater good.

Zikhona Ndlebe and Mbekezeli Benjamin are researchers at Judges Matter, a project of the Democratic Governance and Rights Unit at the University of Cape Town.