Sexual harassment and the Courts – the Judicial Conduct Tribunal for Judge President Mbenenge

It is only just over a week before the Judicial Conduct Tribunal hearing for Eastern Cape Judge President Mbenenge is set to resume. In January 2025, the tribunal, chaired by retired Judge Ngoepe, heard chilling evidence from the complainant, Ms Mengo. The tribunal ended with the re-examination of Ms Mengo by her representative, Adv Rajab-Budlender SC.

[Read all about the Judicial Conduct Tribunal of Judge President Mbenenge]

Considering that this is the first complaint of sexual harassment that the judiciary has had to deal with (excluding the magistracy), how this complaint is dealt with sets a precedent. The Code of Judicial Conduct, under Article 5, requires that “[a] judge must always, and not only in the discharge of official duties, act honourably and in a manner befitting judicial office.” The article further states that “[a]ll activities of a judge must be compatible with the status of judicial office.” The integrity of the judiciary hangs in the balance because of the allegations of sexual harassment against the most senior judge in the Eastern Cape. Hence, the continuous monitoring of the proceedings is necessary.

The integrity of the judiciary hangs in the balance because of the allegations of sexual harassment against the most senior judge in the Eastern Cape.

The power dynamics at play

“The suggestion was put to you that the Judge President has no power to affect your working conditions or your employment. Was that correct?” This was the last line of questioning to Ms Mengo on 24 January 2025. In response, she said “No.” Probed further as to why she was saying “no,” Ms Mengo responded that “sithetha ngomntu one powers zokwenza nantoni na. Uyoyikisa emsebenzini. Uyoyikeka…. And wenza uba uzive, umve xa ekhoyo. Wenza sure uba mve.”

(We are talking about someone here who has powers. Who can do anything at work. He is someone that one would be afraid of… And he would do it in such a way that he makes you feel it when he is present.)

This was the last testimony given by Ms Mengo just before she was to confirm the time period when she handed her phone to the prosecution for purposes of preparations for the tribunal.

More often than not, perpetrators of sexual harassment are persons in positions of power. The complaint against Judge President Mbenenge is a classic example of this fact.

More often than not, perpetrators of sexual harassment are persons in positions of power. The complaint against Judge President Mbenenge is a classic example of this fact. The testimony given by Mengo was to the effect that she feared that if she spoke out against Judge President Mbenenge, she would lose her job. The power imbalances present many difficulties for those faced with sexual harassment in the workplace.

The second sitting of the Judicial Conduct Tribunal

The tribunal against Mbenenge will continue from 5 May 2025 until 16 May 2025. Considering it was said just before the adjournment and postponement on 24 January 2025 that Mengo would be the only witness for her case, the witnesses for Mbenenge’s case should be taking the stand on 5 May 2025. It will be the first time in South Africa’s history that not just a judge, but a Judge President, will give testimony in relation to allegations of sexual harassment made against him. It will be interesting to hear the Judge President’s version of events, considering the extensive detail Ms Mengo’s testimony provided.

What might the outcome be?

Although the tribunal might not be brought to finality on 16 May 2025, one can only wonder about the outcome. Mbenenge, in 2016, found now Member of Parliament Glynnis Breytenbach MP not guilty in misconduct allegations brought against her by the NPA relating to the Kumba/ICT matter. Mbenenge had been appointed to chair the disciplinary hearing against Breytenbach, who had been placed on suspension. Will the tribunal chaired by Ngoepe find Mbenenge not guilty of the sexual harassment allegations levelled against him?

It is curious to note that Mbenenge has sat in disciplinary hearings where the alleged perpetrator was placed on suspension. It is the norm that when an investigation of a serious nature is underway in the workplace, the alleged perpetrator is placed on precautionary suspension. This is done to preserve the integrity of the investigation and to protect the complainant from possible threats. In the judiciary, this has been the practice for all judges against whom a Judicial Conduct Tribunal was to be convened. However, for the first time, this was not done in the complaint against Mbenenge. (Read more) The reasoning has been that Mbenenge is already on “special leave,” which is not valid reasoning. One cannot help but still wonder: why the special treatment when this matter is of such a sensitive nature?

The lengthy delay in dealing with the complaint

The allegations of sexual harassment against Mbenenge surfaced in January 2023. It is now almost mid-2025, and the complaint brought by Mengo is yet to be finalised. It is taking the judiciary almost three years to deal with a sexual harassment complaint. The fact that it is the first time a Judicial Conduct Tribunal is convened in relation to a sexual harassment complaint does not warrant such a lengthy delay in bringing the complaint to finality.

It is notable that a complaint of this nature was brought against Mbenenge at a time when the judiciary did not have an anti-sexual harassment policy. However, as former Chief Justice Zondo left office on 30 August 2024, he signed into place an anti-sexual harassment policy for the South African judiciary. The signing of an anti-sexual harassment policy on the last day of office was nothing short of a surprise, even for judges and magistrates, as there had been no consultation. The anti-sexual harassment policy merely refers complaints of sexual harassment to the existing complaints structures. Section 7.2 of the policy reads:

“It is important though that victims of sexual harassment come forward and lodge complaints for the scourge of sexual harassment to be adequately addressed. In respect of complaints against judges, such complaints must be lodged with the Judicial Conduct Committee. In respect of Magistrates, such complaints must be lodged with the Magistrates Commission.”

Needless to say, referring complaints of sexual harassment to the existing complaints structures will not adequately address the pervasive problem of sexual harassment in the South African courts. (Read more) Fortunately, one of Chief Justice Maya’s priorities has been to ensure that the South African judiciary has a comprehensive anti-sexual harassment policy, with measures in place to ensure that the pervasive issue is uprooted within the South African courts.

Sexual harassment, by its nature, is traumatising and has negative effects on all individuals involved — in particular the victim. Gathering the strength to lodge a formal complaint also has negative effects for the victim. Experiencing a protracted process in dealing with the complaint adds to the negative effects, not only for the victim but for the alleged perpetrator as well.

Conclusion

One can only hope that, by the time an amended anti-sexual harassment policy for the South African judiciary is signed into effect, the Mbenenge Judicial Conduct Tribunal will be brought to finality. Sexual harassment, by its nature, is traumatising and has negative effects on all individuals involved — in particular the victim. Gathering the strength to lodge a formal complaint also has negative effects for the victim. Experiencing a protracted process in dealing with the complaint adds to the negative effects, not only for the victim but for the alleged perpetrator as well. The Judicial Conduct Tribunal against Mbenenge should be brought to finality on 16 May 2025.