When it comes to #MeToo allegations, we ignore legal process at our peril, said retired Constitutional Court justice Edwin Cameron last week.
Cameron was delivering his closing remarks at a symposium in his honour at the University of the Witwatersrand Law School. Talking about how assaults on process can endanger constitutional values in South Africa’s transition, he referred to a 2018 inquiry established by Equal Education into allegations of sexual harassment in the organisation. The inquiry followed a report by the Mail & Guardian of allegations against one of its founders, Doron Isaacs.
The M&G also reported allegations that widely respected social justice activist and Equal Education co-founder Zackie Achmat had protected Isaacs when the allegations had surfaced inside the organisation; and that both Isaacs and Achmat emphatically denied the allegations.
Cameron said that the majority of the inquiry’s panel — chaired by retired judge Kathleen Satchwell — had decided that “in the absence of elementary legal process, the persons who were accused had to be exonerated”. The third member of the panel disagreed with the majority and had found that what had occurred should have been an opportunity for re-examining male power — an “important question”, said Cameron.
But what also happened in the process was a “radical questioning of the value of legal process”, he said.
Cameron said it was “radically attacking the fundamental premises of legal rationality” for someone to face harassment allegations when they did not know the name of their accuser, what she said of him and the when and why and how of the instances she was accusing him of.
“I want to say this unequivocally: we query legal process at our peril.”
When the Satchwell inquiry was established by Equal Education, it said that complainants may request anonymity for the panel to consider. According to Satchwell’s report, 19 submissions were received, but because accusers wanted to stay anonymous, the majority of the panel felt they could not rely on them because this went against the principles of natural justice.
Satchwell was particularly scathing of the M&G’s reliance on anonymous sources, saying the newspaper’s reporting was reminiscent of the gutter journalism of the apartheid era. She expressed “serious disquiet and even disgust at persons who hide behind anonymity for themselves when making grave and reputational-destroying allegations”.
Cameron said he believed that in the process “shameful things happened”, where people said there were “19 accusers, who accused this man of sexual harassment, some of them were males sitting in London, but they did not want their names to be revealed”.
The M&G did not disclose the names or locations of its sources. But Cameron said it would all come out in due course because the newspaper was “being sued for what it did”.
He said his “warning to all of us” was the same one he gave to apartheid courts in the 1980s: “We forego elements of rationality, of reason and of protective process at a cost.”
Yet the lawyers representing those who made submissions to the inquiry, the Women’s Legal Centre (WLC), said Cameron’s comments on a confidential process were “unfortunate”.
The centre’s director, Seehaam Samaai, said the inquiry was never a legal process under the Employment Equity Act or one envisaged in terms of the Amended Code on Sexual Harassment — because Isaacs was not an employee of Equal Education. It was a fact-finding process to establish whether Equal Education “had been a workplace where sexual harassment occurred,” she said.
“The former justice’s analysis of the process and what he termed a radical questioning of the value of legal process[es] is misplaced. The WLC and its clients’ participation in the process did not seek the radical shift that we have now publicly been criticised for.”
Samaai said, given the nature of the inquiry “and the real risk of secondary victimisation, our obligations were to ensure that our clients were protected”.
She questioned how Cameron could comment on confidential submissions: “These documents were all submitted confidentially and to the panel members. We, therefore, cannot comment on how the former justice has formulated an opinion on the content of legal submissions without having had sight of them”.
Equal Education said it welcomed public debate on processes for dealing with allegations of misconduct, and hoped it would “continue to build public consensus around the best means to handle allegations of sexual harassment”.
Leanne Jansen, from the organisation, said: “As we have said before, we respect complainants’ prerogative to retain anonymity — participating in these processes is traumatic. The conundrum, in sexual harassment investigations around the world, is that when complainants require complete anonymity, processes are limited in how they can respond.”
Jansen said the Satchwell inquiry “had to deal with this seemingly irreconcilable issue: on the one hand, complainants’ conditions of anonymity and, on the other hand, the fundamental principles of natural justice that entitles accused persons to know the content and source of the allegations against them and be allowed to respond”.
Samaai said the Equal Education inquiry confirmed that justice for many women in our country remained unattainable. “This requires a radical questioning of who the law serves and whether, in light of the continued rape, sexual assault, domestic abuse and murder of women in our country, we should not be asking radical questions in respect of law reform”.
“Our Constitution is a radical document and section nine is a radical expression of our rights as a society. It guarantees woman in our country the right to live free from discrimination and to live lives of substantive equality,” she added.
Jansen said: “We must push the existing framework and believe that there can be a process designed by womxn and other marginalised groups that will hear, protect, support and centre our experiences to find means of restorative justice and healing.”
M&G deputy editor Beauregard Tromp said the newspaper welcomed Cameron’s comments. “At the Mail & Guardian we are guided by both ethics and law and, as such, stand behind our reporting on this incident. Furthermore, we hope his comments will not only help to deepen the debate, but also help effect the change necessary to more effectively deal with the scourge of sexual harassment and assault, in particular against women.”
Cameron declined to comment further.