The policy prohibits consensual sexual intimacy in court buildings and discourages romantic relationships between members of the judiciary.
South Africa’s judiciary has adopted a sexual harassment policy in the aftermath of a months-long tribunal probing allegations that a senior judge president harassed a junior secretary at the Makanda High Court.
The policy unveiled by Chief Justice Mandisa Maya defines harassment as unwelcome behaviour of a sexual nature and strictly prohibits consensual sexual or intimate activity between members of the judiciary in court buildings or office premises. Romantic relationships between staff in the judicial environment are also discouraged.
Maya said the policy reaffirms zero tolerance for abuse of power and is a step towards safeguarding the integrity of the courts.
It comes after junior legal professional Andiswa Mengo alleged she was subjected to persistent sexual harassment by Eastern Cape Judge President Selby Mbenenge, leading to an inquiry where the power dynamics in their relationship took centre stage. Mbenenge has denied sexual harassment, stating that what happened between the two of them was consensual interaction between two adults.
“The judiciary cannot dispense justice to society if it does not first ensure it within its own ranks. Sexual harassment is a gross abuse of power, a denial of equality and a stain on the legitimacy of the courts. We are going to tackle it head on and this policy will be a very useful mechanism in that battle,” Maya said at the recent launch of the policy.
All judicial officers — judges and magistrates, regardless of seniority — are now required to complete the standardised online anti-sexual harassment training course within six months.
The policy will take into account the circumstances of the targeted person and the social or cultural position of the perpetrator when determining the impact of harassment.
It defines non-verbal harassment as gestures, staring, leering and displaying or sending sexually explicit material while verbal harassment can include innuendos, hints of a sexual or sensual nature, sexual advances, threats, intimidation, favouritism, comments, shaming, teasing, catcalling, whistling, completed rape, sexual assault and comments about a person’s body.
“Unwanted conduct of a sexual nature violates a person’s equality and dignity and may create an uncomfortable, degrading, humiliating or hostile situation or environment,” it reads, adding that physical harm or visible emotional distress is not necessary for harassment to have occurred. A single incident can constitute harassment.
In a foreword to the policy, Maya said members of the judiciary must “hold themselves to high standards of ethical and professional conduct at all times, act in a manner that enhances public trust in, and respect for, the judicial system and avoid impropriety or the appearance of impropriety in all their activities”.
The policy affirms that sexual harassment constitutes unfair discrimination based on sex, gender, gender expression and sexual orientation and is inherently demeaning and harmful to individuals, the judicial working environment and society as a whole.
“The [judiciary] further recognises that sexual harassment not only undermines the health and safety of the judicial working environment but threatens the fundamental legitimacy and integrity of the institution as a custodian of the constitution of South Africa, justice and the rule of law,” the chief justice said.
Victims can initiate a report, request informal resolution or lodge a complaint with the gender desk in the office of the chief justice. The desk will provide information, psychosocial support and legal recourse, as well as training for court leaders and magistrates.
It will also monitor Judicial Service Commission processes, record systemic barriers faced by victims, escalate complaints when necessary and keep a record of judicial officers who had completed the anti-sexual harassment training course.
Reports are anonymous and allow the gender desk to monitor incidents and recommend action within three days, advising victims of their rights and next steps. A request for informal resolution supports victims who are comfortable about being identified and focuses on sensitisation, education and mutual understanding rather than punishment.
However, a complaint is a formal disciplinary process that can be lodged anonymously, with the desk assisting victims to file with the appropriate legal bodies within 14 court days. Sexual harassment cases will be referred to the Judicial Conduct Commission and the magistrate’s court.
“The [judiciary] recognises that sexual harassment is ultimately an abuse of power, informed by intersectional social identities and complex socio-cultural dynamics. While sexual harassment disproportionately affects women, any person can be a victim or a perpetrator,” says the policy.
It requires that complaints be handled with care to protect confidentiality and privacy, to avoid re-victimisation and to encourage victims to come forward.
“The [judiciary] recognises that sexual harassment is a specialist area and that disciplinary processes relating to sexual harassment require expertise and particular insight to be dealt with in a competent and efficient manner. Therefore, experts in the field of sexual harassment, gender-based violence or discrimination may be engaged to assist investigations and tribunals,” the document says.
It also notes that false complaints are “exceedingly rare” and rejects stereotypes that portray victims as opportunistic or malicious. Complaints found to be deliberately false and made in bad faith will result in disciplinary action.
The policy is expected to entrench a culture of accountability and respect, ensuring that the judiciary remains a beacon of justice for all.