Eastern Cape judge president Selby Mbenenge. (Office of the Chief Justice/ S Lioners)
The judiciary’s first sexual harassment policy unveiled by Chief Justice Mandisa Maya earlier this month is a bold step, but a culture of impunity in the court system will still discourage reporting, legal experts say.
Pressure has been mounting for years on the judiciary to adopt a sexual harassment policy, and escalated after the Eastern Cape judge president, Selby Mbenenge ,was accused of sexually harassing a junior legal professional.
During a judicial tribunal, Andiswa Mengo alleged that Mbenenge sent her explicit material on WhatsApp and subjected her to inappropriate conduct at the Eastern Cape High Court in Makhanda. Mbenenge has denied the allegations, stating that the relationship was consensual.
At the launch of the policy Maya said 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,” she added.
As a result judicial officers — judges and magistrates, regardless of seniority — are now required to complete a standardised online anti-sexual harassment training course within six months.
For Brenda Madumise-Pajibo, the founder of advocacy group Wise 4 Afrika, the policy was long overdue.
“We’ve had an unpoliced judiciary for the past 30 years,” she said. “Victims were silenced, and they didn’t have anywhere to go.”
She said the courts have developed a culture of impunity. “Judges and magistrates knew nothing would happen to them. Victims, on the other hand, knew that if they spoke out they would be ridiculed. No one wanted to put themselves out there and be the face of what we all knew was happening.”
Acceptance of the new policy has not been universal. Maya herself admitted that some judges argued it was unnecessary, claiming they could self-regulate.
“That already tells you that you’re working with people who are antagonistic and not willing to implement the policy,” said Madumise-Pajibo, urging Maya to lead from the front. “Implementation lies with the courts. She has to keep track of who attends the training and who refuses.”
The policy defines harassment as “unwelcome behaviour of a sexual nature, whether physical, verbal, or non-verbal, that violates the dignity of women and men”.
It applies to judges, magistrates, clerks and all staff members in court buildings and office premises. It also sets out mechanisms such as a gender desk, staffed by retired judges and gender experts, to handle complaints and provide psychosocial support — a feature that observers say sets it apart from many workplace policies.
The policy’s written form alone marks a shift, said Dimakatso Nchodu, a research assistant at Judges Matter.
“Now that there is a formal document, it will go a long way in holding people in the legal profession accountable. Like any policy, it will take ongoing work — especially with the one-year and five-year reviews built in,” Nchodu said.
“This policy is a testament to how women in leadership and decision-making spaces use their lived experiences and awareness to uplift and protect other women.”
Unlike most workplace rules, which tend to deal with harassment after the fact, the judiciary’s framework takes a more preventative approach, Nchodu noted. “It makes judges and magistrates more aware of how their actions can be perceived by junior staff. That’s crucial in such a hierarchical system.”
She traced the policy momentum back to 2019, when the International Bar Association published a survey highlighting harassment in South Africa’s legal sector. Since then, women’s groups and legal associations have called for reform, with Maya pushing the matter when she was still deputy chief justice.
Although the policy was introduced during former chief justice Raymond Zondo’s tenure, Nchodu said Maya’s leadership accelerated it. “It shows why having women in positions of power matters. They take these issues as urgent.”
The gender desk is one of the features that distinguishes this policy. “Victims have options — from mediation with a colleague to formal disciplinary action. It’s victim-centred and doesn’t place the perpetrator at the centre.”
Gender law expert and co-founder of Thusa Consulting Jeanne Bodenstein also welcomed the move. “The judiciary’s sexual harassment policy sends a very strong message that no harassment will be tolerated. That’s foundational, because it assures victims that their reports will be taken seriously. The policy is also practical.”
She pointed to the gender desk as a support mechanism built into the Office of the Chief Justice. “It recognises the real-world difficulty of reporting. You can request an informal conversation or file a formal complaint. Mandatory training for all members of the judiciary is also key to shifting workplace culture.”
For Bodenstein, the challenge lies in whether the policy is publicised and resourced. “A policy is only as effective as the people and institutions tasked with implementing it. We’ll need to see ongoing resources and proper monitoring.”
She also stressed that the judiciary is not immune from the same unequal power dynamics as other workplaces. “The policy recognises how difficult it can be to speak out against a judge or magistrate. That’s why it provides more than one reporting option, each with different implications for the parties involved. Only time will tell whether these mechanisms cut through victims’ fear.”
The Mbenege tribunal into alleged harassment highlighted why many remain sceptical. Madumisile said the proceedings left “a bad taste” for how victims were treated. “People don’t want to be humiliated. Victims want the perpetrator to sit in front of them and admit what they did — but instead, they put up a fight.”
According to the policy, consensual sexual or intimate activity between members of the judiciary in court buildings or office premises is strictly prohibited. Consequently romantic relationships between staff in the judicial environment are also discouraged.
Madumise-Pajibo argued that the policy should go even further by outlawing romantic relationships between judges and junior legal staff.“The public will only have confidence in the judiciary when they see we don’t close ranks or shift blame when someone is accused of harassment.”
She added that recommendations from senior legal staff often make or break a junior’s career, creating fertile ground for abuse. “Sexual harassment is about inequality and power dynamics — just like when a student is dependent on a lecturer. That’s why most victims will prefer anonymous complaints, because of the decorum expected in the profession.”
Madumise-Pajibo’s concern is that even when victims follow procedure, justice may not follow. “The real test of this policy will be whether we change the mindset that judges and magistrates can use their overwhelming power to ruin or make someone’s career.”