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Sexual Harassment in the Court Building: The Problem

The International Bar Associations’ (IBA) 2019 landmark report

In May 2019, the International Bar Association (IBA) published a landmark report “Us Too? Bullying and Sexual Harassment in the Legal Profession”. [Read here] This was the largest survey of its kind conducted by the legal profession and the report captures the responses of almost 7 000 respondents from 135 countries. Respondents were predominately based in law firms (73%) and demographically approximately half of respondents were European. The results of the survey revealed that respondents had experienced bullying and sexual harassment; one in two women and one in three men surveyed described themselves as having been subject to bullying, while one in three women and one in 14 men surveyed stated that they were subject to sexual harassment in the workplace. Whilst there is no publicly available empirical data for Southern Africa on sexual harassment in the courts, anecdotal evidence speaks overwhelmingly to it being a huge problem and a well-kept secret.

What is Sexual Harassment?

Sexual harassment in the workplace refers to unwelcome or inappropriate behaviour of a sexual nature that creates a hostile, intimidating or offensive work environment. This behaviour can take various forms, including verbal, non-verbal, or physical actions and may include unwanted advances, comments, gestures, or displays of sexually explicit material. Importantly, sexual harassment can occur between individuals of any gender and can involve anyone in the workplace, including colleagues, supervisors, or clients. It is a form of discrimination that violates the rights and dignity of individuals and undermines their ability to work in a safe and respectful environment.

The Democratic Governance and Rights Unit’s (DGRU) Zikhona Ndlebe noted the general definition of harassment provided by The Promotion of Equality and Unfair Discrimination Act of 2000. “Harassment” means unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to sex, gender or sexual orientation. Sexual harassment is therefore harassment which is of a sexual nature.

The survey’s findings

The report, titled Isidima – Magistrates’ Court Users Survey Report 2023 (“the Isidima survey report”) was launched on 31 January 2024 by the Faculty of Law’s DGRU. It focused on the work environment in, and the functioning of, South African Magistrates’ Courts. According to the report, “[t]his is the first time that the extent of sexual harassment within the magistracy has been measured. It strongly suggests that the magistracy is not immune to the sexual harassment which occurs in broader society, and even in the courts.”

The second iteration of the first report on magistrates’ perception of their work environment, titled: The Magistracy after COVID-19 (“the Magistrates Perception Survey Report”) was also launched on 31 January 2024. This report incorporated the views and opinions of 230 magistrates from across the country and included their perceptions on their work environments. The report also confirmed that the magistracy, and in particular magistrates, are not immune to sexual harassment.

Almost a quarter of magistrates received physical harm or threats in the 12 months prior to the survey relating to their work, while 16 percent of female magistrates had been sexually harassed or knew a magistrate who has been sexually harassed – with the most commonly identified perpetrator being another magistrate.

“In the 12 months prior to the survey, almost a quarter (23 percent) of magistrates said that they were personally threatened or harmed because of their work ‘once or twice’. A further 10 percent said that this happened a ‘few times’. These two figures combined means that a third had been threatened or harmed in the last year. In the Western Cape, this was as high as 39 percent (4 in 10). Such a degree of direct harm and threat to magistrates is of serious concern and is a reflection of deteriorating control by the state of safety in South Africa.” – Page 6 [View the report here]

“The survey asked respondents whether they or a magistrate they know has been sexually harassed in the past two years. Around 1 in 8 (13 percent) said they or a magistrate they know has been sexually harassed ‘once or twice’ over the past two years. Women magistrates were twice as likely to say that they know of at least one or two cases (16 percent vs 8 percent), suggesting the survey may have captured some degree of actual experience.” [Page 7]

“[The report] strongly suggests that the magistracy is not immune to the sexual harassment which occurs in broader society, and even in the courts. It further suggests that some magistrates are themselves the perpetrators of this harassment. Of further concern is that as many as 16 percent of female respondents said that if they themselves were a victim, they would not report it, because it would not make a difference or would be worried about negative consequences.

In the companion Isidima survey report, some 2 percent of court users said they, or a person they knew, experienced sexual harassment when at court. Confining the results to female court users, raises this to 3 percent. This suggests the courts are not particularly safe places from sexual harassment.” [Page 8]

A disquieting number of court users also said they were aware of sexual harassment and physical assault in the courts.

While this may be a reflection of South African society, courts should be places of safety and not places where people experience similar or greater threats than those faced in ordinary society. Some attention to safety around courts, and safeguards within courts, accordingly appears to be required.

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.

Addressing the issue

In terms of sexual harassment, the first step would simply be to draw up a policy on this type of conduct.  Mbekezeli Benjamin; Research and Advocacy Officer at Judges Matter explains, “One of the things that we believe should be a key intervention to protect, particularly female magistrates, is just to have a sexual harassment policy in place.

“Currently, there is no policy. These issues must be dealt with by the Magistrates Commission as part of a misconduct process, which is extremely laborious. There should be a clear policy that speaks to what should happen, the internal measures that must be put in place to prevent this type of behaviour and how we can protect the victim when these types of cases are going on,” explained Benjamin.

Addressing the issue of sexual harassment within the judicial system is crucial for upholding justice and ensuring fair treatment for all. Instances of sexual harassment can manifest in various forms within court settings, from inappropriate behaviour by judicial officers or lawyers to misconduct by court support staff or other individuals involved in legal proceedings.

The systems designed to address misconduct in the judiciary are not working effectively. Sexual harassment complaints need to be dealt with swiftly and sensitively, with a victim-centred approach.  Whilst it is commendable that the judiciary has been working on producing a sexual harassment policy (a process that has also taken around a year and is still not finalised), a policy alone is not enough to address the scourge of sexual harassment.

To combat this pervasive problem, it is essential to implement robust policies and procedures aimed at preventing and addressing sexual harassment effectively. Here are our recommendations. [link to Addressing Sexual Harassment article]

It is important that if you or anyone you know has experienced sexual harassment or any form of unwarranted attention from anyone in the courts, that you please speak up and contact LifeLine, Western Cape.