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Sexual Harassment and the Courts – Power imbalances are often at play

Sexual Harassment and the Courts – Power imbalances are often at play

Sexual Harassment and the Courts – Power imbalances are often at play

Although Eastern Cape Judge President Selby Mbenenge, accused of sexual harassment, has not been placed on suspension like all other judges facing serious misconduct complaints, he will at least face a Judicial Conduct Tribunal. This Tribunal, established for the most serious judicial misconduct complaints, could potentially lead to a judge’s removal through impeachment.

Earlier in April, Judicial Service Commission (JSC) spokesperson Mvuzo Notyesi announced that the Mbenenge Tribunal was established on 20 March 2024. Chaired by retired Judge President Bernard Ngoepe, it also comprises retired Gauteng High Court Judge Cynthia Pretorius and Advocate Gift Mashaba SC from the Pretoria Bar. The National Prosecuting Authority is yet to appoint the Evidence Leader, after which the Tribunal will start with hearings.

Notyesi’s announcement was made after the JSC’s 15 February 2024 statement, indicating that it would not recommend that President Ramaphosa suspend Mbenenge pending the tribunal investigation. This decision broke with a decade of precedent. The JSC cited Mbenenge’s current status on special leave as a reason, suggesting it negates the need for suspension.

However, special leave is just not the same as a suspension. A judge on special leave can choose to resume judicial duties at any time, as seen in the former Judge Hlophe’s case, who returned to work after taking special leave following the complaint against him by 11 Constitutional Court justices in 2009. This undoubtedly places the complainant in a very difficult position – not to mention the complaint itself.

Precautionary suspension is, of course, not punitive. It is meant to protect the integrity of the investigation and ensure that witnesses and evidence are not tampered with. Precautionary suspension is particularly relevant in this scenario, where there is a serious power imbalance between Mbenenge, a senior judge in the Eastern Cape (and one of the most senior nationally), and the complainant, a judges’ secretary who works in the same building. A precautionary suspension would also protected the complainant’s dignity, as she has already suffered threats that have reportedly forced her to flee the Eastern Cape.

Alternatively, the JSC does not deem a complaint of sexual harassment serious enough to request the president to suspend a judge, unlike the five other cases of gross judicial misconduct where the JSC recommended suspension pending a tribunal investigation?

Perhaps the JSC did not concern itself with the complainant’s dignity when it decided not to suspend Mbenenge? Alternatively, the JSC does not deem a complaint of sexual harassment serious enough to request the president to suspend a judge, unlike the five other cases of gross judicial misconduct where the JSC recommended suspension pending a tribunal investigation? We have no answer to these questions. This is despite Judges Matter requesting an explanation from Chief Justice Raymond Zondo on 20 February 2024 – five days after the JSC’s non-suspension decision.

Although it might appear that the JSC has treated Mbenenge differently to other judges, the JSC, to its credit, has dealt with it relatively swiftly. The complaint was filed in February 2023, a preliminary hearing was done five months later (in July), and the Judicial Conduct Committee (JCC) issued its ruling of a prima facie case of gross judicial misconduct against Mbenenge on 14 September. Simultaneously, the JCC recommended a tribunal investigation.

In her complaint, Andiswa Mengo, a secretary for another judge in the Makhanda High Court, alleges that between July 2021 and December 2022, there were several face-to-face and electronic exchanges between her and Mbenenge. These exchanges included racy texts and images sent via WhatsApp. She alleges that these exchanges were unwelcome, and she made it known to Mbenenge. They therefore constituted sexual harassment. He denies this, arguing that the texts were mutually consensual.

The JCC, comprising of the Supreme Court of Appeal Justices Dumisani Zondi, Tati Makgoka, and Nolwazi Mabindla-Boqwana, assessed the veracity and gravity of the allegations and found that they were at least plausible. It found that, if proven, the allegations would constitute gross judicial misconduct, which may lead to Mbenenge’s removal from office through impeachment. The JCC recommended that JSC set up a tribunal to investigate the allegations, including getting witness testimony and forensic analysis of the text messages.

Following a lengthy meeting on 6 December 2023, the JSC adopted the JCC’s recommendations, instructed Zondo to set up a tribunal to investigate, and gave both Mengo and Mbenenge a chance to explain why he should be suspended. On 15 February 2024, the JSC decided not to advise the President to suspend Mbenenge. Zondo established the tribunal on 20 March 2024.

The relatively swift handling of this complaint by the JSC is promising, yet seven months is still an inordinately long time to only deal with the preliminary stages of what may be a drawn-out process. The JSC is yet to redeem itself from the decade-long period it took to deal with complaints against impeached former judges Hlophe and Motata, or the five years it’s now taken to deal with the complaint against Judge Nana Makhubele.

Sexual harassment is an extremely sensitive topic, particularly in the workplace. It is a complete abuse of power and does severe physical, mental, and career damage to the victim.

Sexual harassment is an extremely sensitive topic, particularly in the workplace. It is a complete abuse of power and does severe physical, mental, and career damage to the victim. Studies by the International Bar Association and judiciary prove that it is pervasive in the legal profession. Studies by the Institute for African Women in Law and judiciary expert Dr Tabeth Masengu prove that it is a structural limitation to the career advancement of women within the judiciary.

In this case, as is common in similar cases, there are huge power imbalances between the complainant, a judges’ secretary, and the alleged perpetrator, a judge president. By treating this case differently from other judicial misconduct cases in the last 10 years, the male-dominated JSC reinforces these power imbalances.

It is now extremely urgent that the judiciary adopts a comprehensive Anti-Sexual Harassment Policy to guide what the JSC should do in sexual harassment cases. The policy would help victims not feel that their complaints are trivialised and would protect them from reprisals.

An anti-sexual harassment policy would foster in our courts an environment that is intolerant of all forms sexual harassment, tackles abuse of power, and eliminates the power imbalances. It would help create a welcoming and inclusive environment and affirm the dignity of all court users. It would maintain our courts as places of safety. Zondo promised such a policy at his chief justice interview in February 2022. Two years later it is still not done.

Sexual harassment is the one of the big taboo topics in the legal profession and the judiciary. The constitution demands the transformation of the judiciary to make it broadly representative of South Africa’s population. The constitution also affirms everyone’s inherent dignity and requires that everyone receive equal protection and benefit of the law. Transformation will remain elusive if sexual harassment, one of the structural barriers to the advancement of women in the judiciary, is not tackled head-on. We need judicial leaders to act to eliminate sexual harassment as an abuse of power and protect the dignity of everyone in our courts.

 

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