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01 Jun 2018 00:00
The disciplinary panel accepted the evidence brought against attorney Henk Smith, but he wasn’t fired. (Realising Rights)
The Legal Resources Centre (LRC) has allowed an alleged sexual harasser to resign without public censure — despite an independent investigation upholding the evidence of his accusers.
Henk Smith, an attorney who joined the LRC in 1991, was formally accused of sexual harassment by two women in 2017. A disciplinary hearing convened by the centre accepted “in totality” the evidence of both of them “in relation to the sexual harassment allegations”.
It recommended that Smith be fired.
Smith denies all the allegations against him as “baseless”.
The LRC did not implement the recommendation of the disciplinary panel, instead allowing Smith to resign. He continues to work in public interest law.
In response to questions from the Mail & Guardian, the LRC said: “Notwithstanding the accusations for which he was found guilty, Mr Smith served as an attorney for 27 years at the LRC and served his clients diligently and was highly regarded by them. [The executive committee] felt that this should be taken into consideration — among other factors — in allowing him to resign.”
The LRC also said that it wanted to avoid further legal costs that may accrue, given the likelihood that Smith would contest a potential dismissal. The LRC said it did not inform Smith’s clients that he had been found guilty of sexually harassing women. “They were advised of his immediate resignation and that another attorney would be dealing with their matter,” it said.
Smith then took the LRC to the Commission for Conciliation, Mediation and Arbitration, claiming constructive dismissal. A settlement was reached, but according the CCMA rules this is confidential unless otherwise agreed by both parties.
The LRC is one of the largest public interest law firms in the country, established in 1979 by Felicia Kentridge and former Constitutional Court judge Arthur Chaskalson. Smith is a prominent lawyer in his field, having made a name for himself on land and mining cases.
Two women the M&G spoke to alleged sexual harassment by Smith dating back more than a decade. “Debra” said that she was harassed by Smith in the early 2000s. She was not one of the complainants in the 2017 investigation. She agreed to be quoted under a pseudonym.
“It is the holding of hands, the massaging of shoulders at the end of a difficult day. You think it is off, but am I making a big deal out of nothing? By the time you realise it is sexually overt, it has gotten to a point where he feels it is appropriate to put his hands under your clothes …
“We all have in common this idea that [this consists] of, in many ways, grooming. As junior black women, you are looking up to a man who is taking the time and interest to mentor you, to bring you into big, important cases and have you work on them,” she said.
Debra said the LRC’s working environment discouraged women from speaking out. “I was warned about Henk by another woman when I started; I was told to lock my door when we went on an office trip,” she said.
The independent panel found that Smith had a reputation in the organisation for sexual harassment. It included testimony from one complainant that “[Smith] was known for this behaviour”, and found it was an indictment of the LRC that “young women coming into the LRC have been forewarned about [Smith’s] behaviour and it has been allowed to continue for what appears to be a considerable period of time”.
In one of the incidents investigated by the panel, Smith allegedly requested a “private viewing in the bathroom of a part of her body”.
During the disciplinary hearing, Smith argued that the complainants were not sexually harassed but rather that they were the ones interested in pursuing sexual relations with him. In response to questions from the M&G, Smith denied “the accusations of impropriety” that were levelled against him.
Speaking on his behalf, Smith’s “close friend and colleague”, attorney Richard Spoor, said: “The allegations are not consistent with his record and proven commitment to human rights and social justice … Henk disputes the findings that were made against him. Henk chose to resign rather than continue with a process that left him drained, both emotionally and financially. The interests of his family weighed heavily in his decision.”
Spoor added: “Henk continues to practise as a lawyer and to serve the interests of his clients who have retained his services. The LRC does not fund his work.
“The M&G references a number of new allegations that have not been raised before. These new allegations are also denied … Henk is understandably disappointed to have his good name and reputation tarnished by the baseless allegations made against him.”
Spoor added that the LRC had appointed an independent consultant from the Women’s Legal Centre to conduct an “extensive and exhaustive investigation” into Smith’s conduct. “This is, however, the first time that these new allegations are brought to Henk’s attention.”
The disciplinary hearing found that Smith showed no sign of remorse, and strongly recommended that he be dismissed. “Mr [Smith] is in a position of seniority and power, and our courts have confirmed that sexual harassment of young, vulnerable employees by senior management warrants dismissal … What does it say to young black women who are employed as candidate attorneys and researchers and junior staff at the LRC’s office?”
The findings were written by the chair of the investigating panel, senior counsel Nazreen Bawa. Despite the recommendation for his dismissal, Smith was allowed to resign.
The LRC did not publicise the findings of the independent investigation to staff. And it was not a unanimous decision to sever professional ties with him: according to the minutes of a board meeting, a board member said that, “in principle and under certain conditions, she would not be opposed” to the possibility of a “ongoing working relationship”.
“Thando” — also not her real name — was one of the complainants who prompted the 2017 investigation into Smith’s behaviour. She said she felt let down by the LRC, which “did nothing” to protect the women who were speaking out against Smith.
She said that during the hearing, she was subjected to a gruelling cross-examination that felt like a “criminal trial”. In addition, the complainants were not given any financial support to help with legal fees.
However, the LRC said they were given legal assistance organised by the Women’s Legal Centre and were offered counselling. The LRC was not itself able to assist because “the difficulty was that the complainants indicated that they did not trust the exco [executive committee] to safeguard their interests”.
Thando said she was especially disappointed by the organisation’s national director, Janet Love, whom she accused of being “absent” throughout the process.
“There was no support offered to us and everything the organisation did was to accommodate Henk. Simple things like protecting witnesses were not done. Janet must have known, because this has been happening for over 15 years,” Thando said.
Debra agrees that Love did not do nearly enough. “She [Love] is an extremely powerful figure in the sector and organisation. Her absence implied that she didn’t support us and, more importantly, it looked like she was supporting him,” Debra said.
Love said she was only made aware of the sexual harassment allegations in February 2017. She denies that she failed to support the complainants: “There is no truth in this allegation. I was shocked to hear of the allegations and more shocked that other staff members in the LRC had been made aware of this, and had not brought it to my attention.
“From the day I was informed about the allegations of sexual misconduct, I have unwaveringly insisted that all efforts be made to enable those affected to come forward.” She said, because the women had expressed a lack of trust in senior management, “I did not see it as appropriate to reach out”.
Neither Debra nor Thando still works at the LRC. Smith has established a new legal practice, Henk Smith and Associates. “Smith got to pick up exactly where he left off on all his cases. We all had to leave our jobs and now must worry about people finding out [about the abuse],” said Debra.
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