Eastern Cape judge president, Selby Mbenenge. (Judges Matter)
Eastern Cape Judge President Selby Mbenenge should step down pending the resolution of a complaint of sexual harassment filed by a former clerk in the division, civil society organisation Judges Matter said on Tuesday.
“This is an extremely serious complaint and must have had an impact on the functioning of the division,” Judges Matter co-ordinator Alison Tilley said.
“A high court judge president plays an important leadership role in the judiciary and the day-to-day management of the high courts in the province, including allocating cases to judges, drawing up the court roll and finding acting judges where additional capacity is needed.
“Acting as a judge is now considered a de facto requirement for permanent appointment as a judge. Under the circumstances, we believe it would be appropriate for the judge president to step down until the complaint is resolved.”
Mbenenge is the subject of an investigation by the Judicial Conduct Committee, the sub-committee of the Judicial Service Commission (JSC) which deals with complaints against judges. The complaint was brought in December by the female clerk of Makhanda high court judge Avinash Govindjee.
The Sunday Times has published a screenshot of obscene WhatsApp messages, purportedly from Mbenenge, to the complainant. It reported that she was redeployed to the office of the superintendent-general in the Midland offices of the Office of the Chief Justice.
The office declined to comment on the case and referred all inquiries to the JSC.
The JSC confirmed that it had received a complaint against Mbenenge and that it was with the Judicial Conduct Committee.
“The parties have been given the opportunity to make any written submissions by 25 March,” it said. “The JSC will and is obliged to await the outcome of the JCC process.”
Though the JSC could ultimately recommend suspension, its statement indicates that it has ruled out doing so at this early stage. Another option is placing the judge president on special leave, which would be a decision only Chief Justice Raymond Zondo could make.
Judges Matter has for some time called for the judiciary to adopt a formal policy on dealing with sexual harassment. The issue was raised in February last year by JSC commissioners in interviews with four candidates for the post of chief justice. Zondo, who was deputy chief justice, confirmed in his interview that no such policy was in place.
“I think my colleagues who are in the heads of courts who are also candidates here, I’m quite happy to make sure that on Monday I talk to them and say okay, what, how do we move, let’s move on this,” he said in response to a question from commissioner Nomaswazi Shabangu-Mndawe.
The issue has since been raised again in interviews with aspiring judges, but to date no overarching anti-harassment policy has been adopted and it is not clear whether one is being drafted.
Tilley said Judges Matter was aware of at least one senior judicial officer being suspended for sexual harassment.
“Sexual harassment is an ongoing problem in our country and in the legal profession,” she said.
“It is well past time that the judiciary adopts an anti-sexual harassment policy which will regulate the conduct of judges and magistrates, protect victims and combat this scourge.”
Last week, Judges Matter called for an unnamed Free State high court judge to step aside after the Directorate for Priority Crimes Investigation, the Hawks, said he had been warned to appear in the Kroonstad specialised commercial crime court on charges of theft, money laundering and contempt of court.
The case involves more than R2.5 million and the alleged crimes dated back to the judge’s days as an attorney.
The judge allegedly handled a Road Accident Fund (RAF) claim stemming from an accident involving a child in 2000 and handed the matter over to another attorney after he was appointed to the bench. At this point, there was an amount of R1.225 million in the file. The victim’s mother pressed charges against the second attorney for misappropriating the money. It was then discovered that the RAF had paid out R3.142 million.
“We are deeply shocked and very concerned at this turn of events. While the judge is innocent until proven guilty by criminal law standards, he is bound by the judicial code of ethics, which requires judges to always behave honourably and in a manner befitting judicial office,” Judges Matter said.
“Being named in criminal charges such as these brings the judiciary into disrepute and is not compatible with the office of a judge. We call for his stepping aside until these charges are resolved.”
The judge is due to appear in court on 9 March, and cannot be named before then.
Prasa public hearings
On Tuesday, the Judicial Conduct Tribunal began its public hearings into allegations of gross judicial misconduct against Gauteng high court judge Nana Tintswalo Makhubele.
The complaint was filed by activist organisation #UniteBehind. It centres around her serving as chairwoman of the interim board of the Passenger Rail Agency of South Africa (Prasa) after she was appointed as a judge, in violation of the law and judicial ethics, and allegations that she used her position on the board to further the interests of Siyaya, a company implicated in state capture.
Allegations include that she sidelined Prasa’s legal advisors to approve the settlement of claims worth close to R60 million with companies in the Siyaya group. It was owned by Makhensa Mabunda, who was politically connected to former Prasa chief executive Lucky Montana.
The allegations were investigated by the Zondo commission of inquiry. However, Makhubele never completed her evidence to the commission after seeking several postponements. She also did not submit an affidavit, despite telling the commission that she had prepared one spanning 47 pages and would supplement it in relation to testimony from other witnesses.
Makhubele was interviewed by the JSC for a seat on the bench in early October 2017. On 19 October, her appointment as chair of the Prasa board was announced, followed a fortnight later by confirmation by then-president Jacob Zuma’s office of her appointment as a judge.
On Tuesday, Gauteng Judge President Dunstan Mlambo told the tribunal that he raised the conflicting appointments with Makhubele in January 2018 when he called her to a meeting to ask why, unlike the other candidates appointed to the division, she had not taken her oath as a judge.
He said she had raised her responsibilities at the Water Tribunal, but he rejected this as a reason to delay her taking up her judicial appointment “because there is no conflict as I understand between her work as Water Tribunal chair and as a judge”, and then questioned her about Prasa.
“I said ‘are you not able to come because you’ve accepted a position, based on what I have read in the media’ and she said ‘yes’. I think I voiced my complete disappointment that she had accepted that appointment, having known from early October that she had been recommended for permanent judicial office,” Mlambo said.
“My biggest disappointment was that there were a number of matters in the division involving alleged corrupt activities at Prasa, and I say that was my biggest disappointment because I specifically said to her: ‘How could you go and join an organisation that was featuring in this division where you are appointed as a judge?’”
He said she insisted that she was not able to start work in the division, and that deputy judge president Audrey Ledwaba then asked her why she would back out of the Prasa post.
“She said in response that she did not want to disappoint the minister.”
Retired judge president Achmat Jappie, who is the president of the tribunal, asked who had first raised the issue of Prasa. Mlambo replied that he did.
“Before that, she had never raised it with you?” Jappie asked.
“Never ever,” Mlambo said.
*This article has been updated to reflect comment from the JSC
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