Misconduct Tribunals and the Sexual Harassment Policy
In the closing arguments of the Judicial Conduct Tribunal against Judge President Selby Mbenenge, which took place on 21 October 2025, an interesting issue arose: should the Sexual Harassment Policy for the Judiciary, introduced by Chief Justice Maya on Women’s Day, be considered when assessing the evidence before the Tribunal?
From research conducted both abroad and locally, we have learnt that sexual harassment occurs within the legal profession and on court premises, and not just among judges. (Read more here and here)
While the case against Judge Mbenenge is probably the most high-profile, it is unfortunately not the only case of sexual harassment involving a judicial officer. KwaZulu-Natal Regional Court President Eric Nzimande is currently facing more than 100 disciplinary charges before the Magistrates Commission, some of which relate to sexual harassment and sexual extortion. Similarly, in 2024, Parliament impeached former magistrate Mziwonke Hinxa for sexual harassment.
It is in this context that Chief Justice Mandisa Maya, after years of urging by various stakeholders, including Judges Matter, introduced the Sexual Harassment Policy of the South African Judiciary on Women’s Day 2025.
In these cases, we are dealing with allegations of sexual harassment and findings as to whether, objectively, the case constitutes sexual harassment and whether this amounts to misconduct.
The policy defines sexual harassment as “unwanted conduct of a sexual nature”. It states that “[t]his Policy has been created to reaffirm the core values of the South African Judiciary: integrity, accountability, equality, dignity and respect. It provides mechanisms to protect against victimisation or retaliation under any and all circumstances.”
It goes on to say that “it is expected that it will be fully enforced and that appropriate disciplinary action will be taken against any transgressor thereof. All members of the South African judiciary are thus expected to acquaint themselves with it.”
Important aspects of the policy still need to be worked out, including the rollout of mandatory training to help judicial officers understand the nuances of consent and “unwanted conduct”. This is especially important in a hierarchical workplace like the judiciary, where there are inherent power imbalances between ‘seniors’ and ‘juniors’, creating potential for the abuse of power.
While there is much-deserved fanfare around the policy statement, it is worth noting that the policy simply codifies many of the long-standing principles that undergird judicial integrity and form the bedrock of the Code of Judicial Conduct, which declares that it is judicial misconduct for judges not to act honourably in both their public and private lives. It stands to reason that unwanted sexual advances by a judge towards another would now fall foul of the written policy, in addition to the (often unwritten) ethical standards of the judiciary.
In this context, it is almost obvious that all of the principles articulated in the policy would apply to any inquiry into judicial (mis)conduct. This is why, during the closing argument in the Mbenenge Tribunal, the complainant, Ms Andiswa Mengo’s lawyers, urged the Tribunal Panel to consider the principles of the policy in their assessment of Mbenenge’s conduct.
However, Ms Mengo’s lawyers also acknowledged the long-standing principle of non-retrospectivity (that is, the law cannot punish conduct that occurred prior to the enactment of such law). This is also what Judge Mbenenge’s lawyers argued, that the Panel cannot apply the August 2025 policy to assess conduct from June 2021.
Nevertheless, the policy is firmly forward-looking. It states: “It is hoped that the implementation of this Policy will result in increased efforts to promote gender equity and safety in the judicial workplace, and to eradicate all forms of sexual harassment within the South African Judiciary.”
The overall impression created by the policy is that it is not focused on prohibiting consensual workplace relationships; it is about power, propriety and respect. This is not a new principle. It simply emphasises that courts are like any other workplace, and that officials must be vigilant about how their conduct is perceived and may be received.
The overall impression created by the policy is that it is not focused on prohibiting consensual workplace relationships; it is about power, propriety and respect. This is not a new principle. It simply emphasises that courts are like any other workplace, and that officials must be vigilant about how their conduct is perceived and may be received. It also highlights the principles and rules referred to in the Judicial Code of Conduct regarding how a judge should conduct themselves.
In light of these statements, it is inconceivable that any inquiry into judicial conduct would completely disregard these principles, even if not applied directly.
…the proof will come in the implementation of comprehensive reforms to foster a culture of respect and accountability, and ultimately a safer and more equitable work environment for all.
However, addressing sexual harassment in the courts is not just a matter of policy; it is a fundamental issue of justice and equality. Beyond the policy document, the proof will come in the implementation of comprehensive reforms to foster a culture of respect and accountability, and ultimately a safer and more equitable work environment for all.
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