Justice Mandisa Maya. (Photo: DispatchLive)
A committee has been set up under deputy Chief Justice Mandisa Maya to draft an anti-sexual harassment policy for the judiciary, Chief Justice Raymond Zondo said on Friday.
“There is a committee that has just been put together, [Maya] is the chairperson of that committee. There is a document that I think that committee, which was recently appointed, will probably want to let me see,” Zondo said in response to a question at a media briefing after he delivered the 2021-22 annual report of the judiciary.
“So there is some work that is going to be done. It did not happen as quickly as it should have,” he conceded.
There have been repeated calls for the judiciary to adopt a formal policy on dealing with sexual harassment.
Zondo was reminded at the media briefing that he undertook to make short work of ensuring that such a policy was put in place when he was interviewed in February last year, as the then deputy chief justice, for the position of chief justice.
At the time, he said, in response to a question from commissioner Nomaswazi Shabangu-Mndawe: “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.”
Zondo recalled that the issue was also raised in Maya’s interview for the same position.
He said he was for some time afterwards occupied with completing the final report of the commission of inquiry into state capture, which he chaired. Once he had done so, he reflected on the issue and came to the view that it would be good to establish a committee headed by Maya to set to work on formulating a policy, “if there is a need”.
“But after she arrived, I thought I should give her time to get settled a little bit. You would remember that she started in September.”
Questions were raised about the issue this week after news broke that Eastern Cape Judge President Selby Mbenenge has been accused by a law clerk of sexual harassment. The Judicial Conduct Committee is investigating a complaint to this effect filed in early December.
According to JSC spokeswoman advocate Sesi Baloyi, the JSC has asked Mbenenge and the complainant to file written submissions by 25 March.
“The JSC will, and is obliged to, await the outcome of the JCC process,” Baloyi said.
The JSC can recommend the suspension of a sitting judge pending finalisation of a complaint. In the alternative, a judge could be asked to recuse himself from his duties until the matter is resolved. In this instance, because the complaint concerns a judge president, it would be up to Zondo to make such a request.
On Tuesday, civil society monitoring group, Judges Matter, said it would be appropriate for Mbenenge to step down from his duties pending the finalisation of the matter.
“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.
“Under the circumstances, we believe it would be appropriate for the judge president to step down until the complaint is resolved.”
Tilley reiterated that there was a pressing need for the judiciary to adopt a policy on sexual harassment.
“Sexual harassment is an ongoing problem in our country and in the legal profession. 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.”
The complaint against Mbenenge was not raised directly in questions to Zondo.
However, the length of time it takes the JCC, which consists of six members, to deal with complaints against judges did arise. A part of the problem is that members are sitting judges with heavy workloads at court.
“There is a view that we should make more use of retired judges because they have the time … I think it is very important that the burden should be spread over a number of people,” Zondo said.
It would require a law amendment, and the Judicial Service Commission could in time call for such, he added: “So that we have a system that is flexible and easy to work with.”
The composition of the JCC is not a full explanation, though, for delays in dealing with complaints against the judiciary. This week, the Judicial Conduct Tribunal held a public hearing into a complaint, filed in 2019, that Gauteng high court judge Nana Makhubele breached the Judicial Code of Conduct and the separation of power by serving both on the bench and the interim board of the Passenger Rail Agency of South Africa (Prasa), and breached the law by furthering corruption.
But the complaint was only referred to then Chief Justice Mogoeng Mogoeng a year later. In February 2020, he deemed it serious enough to warrant a hearing by the JCC, which then happened seven months afterwards.