Eastern Cape Judge President Selby Mbenenge. (Nelius Rademan/ Foto24/Gallo Images)
As well as adopting new criteria for judicial appointment, the Judicial Service Commission (JSC) has resolved to develop a policy on dealing with sexual harassment complaints against judges.
“A decision was also made that we will develop a sexual harassment policy and a specific commissioner was tasked with the responsibility to prepare a document,” JSC spokesperson Sesi Baloyi said on Tuesday.
She did not name the commissioner.
Baloyi said the policy would focus specifically on what steps the commission should take after a complaint has been lodged against a judge but before the Judicial Conduct Committee (JCC) makes a recommendation in the matter.
This could be a matter of months, as is currently proving to be the case with a complaint against the Eastern Cape judge president, Selby Mbenenge.
“The sexual harassment policy would be something between when an issue arises and as the JCC is dealing with that, what should the JSC be doing to, if there is anything else that we can do to address issues in the interim while the JCC is considering and finalising a matter.”
There have long been calls for the JSC to adopt a policy on sexual harassment but these became louder after it emerged in February that a law clerk had filed a complaint against Mbenenge.
The matter came to light after the Sunday Times published a screenshot of obscene WhatsApp messages, purportedly from Mbenenge, to the complainant.
She served as clerk for the Makhanda high court judge, Avinash Govindjee, and was reportedly transferred to the office of the superintendent-general in the Midland offices of the Office of the Chief Justice.
Judges Matter, which monitors the judiciary in South Africa, has called for Mbenenge to step down pending the finalisation of the complaint by the committee.
Although the JSC could recommend suspension, it said it was obliged to await the outcome of the JCC process. Another option would be for the judge president to go on special leave, which would entail a decision by Chief Justice Raymond Zondo.
“That matter is still with the JCC,” Baloyi said. “As matters stand, submissions are being exchanged by the parties. I think it is at the stage where someone is supposed to be filing a reply by the end of this month, and then the JCC deals with this matter.”
The JSC in October published new guidelines for judicial appointments that expand on the cryptic criteria that has been in place for more than a decade.
It faced considerable pressure in this regard too, given repeated instances where commissioners abused the interview process to harangue judges about past rulings with political import or launch attacks on candidates.
Baloyi said the new criteria came into effect on Monday, when the JSC began a week of interviews to fill various vacancies on the bench, and would be published soon.
The starting point remained the requirements set out in the Constitution, namely that the candidate must be fit and proper and have appropriate qualifications, but it further set rules to ensure the fair treatment of candidates and gave the chairperson the power to rule a particular line of questioning out of order.
“What this document does, is it teases out what that entails but also provides guidance about how we should be treating candidates when they appear before us, without detracting from the robustness of the interviews and allowing commissioners to freely debate with members,” Baloyi said.
“Perhaps the one innovation there is the power that is given to the chairperson to make a final ruling if he determines that a line of questioning or a discussion were inappropriate, the chairperson would have the power to make a ruling and his ruling would be final, so perhaps that is the biggest takeaway from this.”
The draft criteria also added nuance to the call in the Constitution for the bench to reflect the demographics of the country, which has in the past seen white male candidates in particular asked to justify their decision to seek appointment or promotion.
The draft document explained the need for diversity not as number-driven racial redress but for the sake of having courts that can relate to lived experience of the litigants who appear before it.
Zondo has referred to the new rules at the start of all interviews and ensured candidates that they would be treated respectfully throughout.
“We agreed that while on the one hand the questioning can be robust, at the same as we question candidates we have due regard to the candidate’s human dignity, we show respect and courtesy and there is nobody here who is here to try and humiliate anybody,” he said on Tuesday at the start of Mpumalanga high court judge Brian Mashile’s interview.
Mashile is one of the candidates to replace the Mpumalanga judge president, Francis Legodi, who is due to retire.
Earlier on Tuesday morning, the commission decided to recommend the appointment of the Western Cape high court judge, Lister Nuku, to head the competition appeals court.