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Sexual Harassment Complaints

In a recent study conducted by the Democratic Governance and Rights Unit (DGRU), ‘some 1.9 percent of all court users said they, or a person they knew, experienced sexual harassment at court. Confining the results to female court users, raises this to 2.7 percent…. Indeed, among type of court user, the incident of awareness of sexual harassment was highest among those (male and female) who said they were at court to obtain an order (2.3 percent), rising to 3.4 percent among female court users at court to obtain an order. Court users who said they were, or knew someone, sexually harassed were most likely to identify SAPS police officers (27 percent) as being responsible for sexual harassment.’

Although SAPS were identified as being the predominant perpetrators of sexual harassment, members of the judiciary have also been alleged as perpetrators of sexual harassment and sexual violence. To illustrate this unfortunate reality, it is necessary to consider a few complaints lodged against judicial officers in the lower courts and the superior courts.

Sexual harassment complaint against Magistrate Nzimande

Nzimande was the Regional Court President of the Regional Division, Kwazulu-Natal.  He had served the Lower Courts Judiciary as a Regional Magistrate since 01 July 2000. He was appointed the Regional Court President, Kwazulu-Natal on 01 June 2011.

On 30 June 2015 Mrs Gumede, who was an acting regional court magistrate, lodged a formal complaint against regional court president Nzimande. Among the various allegations made, Gumede alleged that she was sexually assaulted and harassed by Nzimande. She alleged that Nzimande made subtle sexual advances to her and/or calling her into his office, asking her to sit on his lap whilst talking to her and/or indicating that she was indebted to him for her job and that he was personally responsible for her receiving the position as acting Regional Magistrate. It was also alleged that Nzimande would consistently tell Gumede of other magistrates who would engage in sexual favours in return for employment perks and also sent her photos of his genitalia via his cellular phone. Such conduct violated her rights to the integrity of her body and personality. It was further alleged that Nzimande extorted money from her since her appointment as a judicial officer, and that Nzimande had borrowed more than R140 000 from her.

Nzimande pleaded not guilty to all the charges of misconduct against him. During the preliminary investigation conducted by the Magistrates Commission (“the Commission”) in terms of regulation 26(1) of the Regulations for Judicial Officers in the Lower Courts (1994), reliable evidence was obtained indicating that the allegations against Nzimande were of a serious nature. The Commission found that it was inappropriate for Nzimande to perform his duties as a judicial officer and Regional Court President. Having considered the existing evidence against him, the Commission resolved to charge Nzimande with misconduct.

Four years later,  in February 2019, the Commission approved the appointment of three Regional Magistrate Presiding Officers (PO’s) to preside, and two Persons to Lead the Evidence (PLE’s), at Nzimande’s misconduct inquiry. Five years after this, on 14 February 2024, the chairperson of the Ethics Committee in the Commission, Adv Manaka, gave a briefing to the Portfolio Committee on Justice and Correctional Services in Parliament. She informed Parliament that the misconduct inquiry against Mr Nzimande had been postponed to 04 – 15 March 2024.

Nine years later, the misconduct inquiry against Mr Nzimande, still has not been finalised.

Sexual harassment complaint against Magistrate Masizane

In August 2021, a formal complaint of sexual harassment and sexual assault was lodged by four women against Magistrate Masizane. The complaint was initially lodged with the Department of Justice and is now before the Commission. Although the Ethics Committee of the Commission has considered all four complaints, Masizane has not been placed on any form of suspension. It is still “business as usual” for Masizane.

Two years after the complaints were lodged, the Commission, in or around August 2023 appointed the PO and the PLE in the complaints. Approximately three years later, the misconduct inquiry against Masizane, still has not been finalised.

Sexual harassment and assault complaint against Magistrate Hinxa

A 42-year-old woman from Botshabelo lodged a complaint on 29 July 2016 to the DoJ. She alleged that she was raped by Magistrate Hinxa in his flat in Bloemfontein. The complaint was referred to the Commission on 02 November 2016.

After various communications with Hinxa, the Commission resolved to conduct a preliminary investigation into the allegations of rape against Hinxa. Based on the evidence gathered during the preliminary investigation, on 24 November 2017, Hinxa was charged with two counts of misconduct. Among other things, the basis of the alleged misconduct was that Hinxa, on two different occasions during 2010 and 2011, unlawfully and wrongfully compelled the complainant without her consent to commit an act of sexual intercourse with him.

On the advice of the Commission, on 29 November 2017 the Minister of Justice provisionally suspended Hinxa from office and this was confirmed by Parliament. Hinxa challenged his provisional suspension in court. However, his legal challenge did not result in a court order barring the Commission from proceeding with the misconduct inquiry.

On 21 May 2018 the Commission appointed a Regional Magistrate as the PO at the inquiry and two Regional Magistrates as PLEs. The misconduct inquiry commenced on 30 October 2018, two years after the complaint was formally lodged. The misconduct inquiry has been finalised by the Commission and Hinxa has been found guilty of misconduct. It is now up to Parliament to decide whether or not to initiate the process to remove Hinxa from office.

Sexual harassment complaint against Eastern Cape Judge President Mbenenge

In February 2023 a sexual harassment complaint was brought against Eastern Cape Judge President Selby Mbenenge by Makhanda High Court official, Ms Mengo. In the complaint she submitted to the Judicial Services Commission (JSC), the complainant alleged that face-to-face and electronic exchanges she had with Judge President Mbenenge during 2021 and 2022, including racy texts and images he sent her via WhatsApp, constituted instances of sexual harassment. The JSC considered the complaint and referred it to the Judicial Conduct Committee (JCC) for consideration.

The JCC, which comprised three judges of the Supreme Court of Appeal – Dumisani Zondi, Tati Makgoka and Nolwazi Mabindla-Boqwana – assessed the veracity and gravity of the charge against Mbenenge. On 14 September 2023 the JCC made a ruling to the effect that the complaint against Mbenenge be referred to a Judicial Conduct Tribunal (the Tribunal) for an investigation. A Tribunal is set up for the most serious complaints which could result in the removal of a judge in terms of section 177 of the Constitution, 1996.

The JSC adopted the decision of the JCC on 6 December 2023 and it was indeed recommended to the Chief Justice that the complaint against Mbenenge be referred to a Tribunal. On 15 February 2024, the JSC decided to advise the President not to suspend Mbenenge. The JSC’s advice to the President not to suspend Mbenenge is solely because the latter is currently on special leave pending the outcome of the Tribunal.

[READ ABOUT THE MBENEGE TRIBUNAL HERE]

 

Conclusion

During the briefing on suspension of magistrates before the Portfolio Committee on Justice and Correctional Services an important point was raised by Honourable Qubudile Dyantyi, MP. He noted that, ‘there is a serious gap in time from the point in which a complaint had been reported to the Commission, and when a charge sheet was produced, to when a matter was taken to the Commission itself, and then to the Minister. All the complaints dealt with by the Commission experience a notable gap in time before matters are dealt with. This gap is also evident in the complaint dealt with by the JSC.

By Zikhona Ndlebe

Zikhona Ndlebe is a researcher of the Democratic Governance and Rights Unit, an applied research unit in the Public Law Department at the University of Cape Town.

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