Can systemic problems such as sexual harassment be dealt with through “normal” disciplinary proceedings like the Judicial Conduct Tribunal? (File graphic)
Sexual harassment has been described as an “open secret” in the legal community.
Lawyers and judicial officers whisper about it in corridors and chambers but hardly ever speak about it openly. But even when they do, not enough is done to deal with the structural causes and effect of sexual harassment — particularly on women, who are most often the victims.
Recent events, however, have shone a spotlight on the issue, demanding urgent action to resolve it. Some solutions, such as an overarching anti-sexual harassment policy, have been proposed but they need determined leadership to see them through.
For two weeks in January 2025, the legal community held its collective breath, fixated on the graphic, harrowing testimony and cross-examination of Andiswa Mengo, a judge’s secretary who filed a judicial misconduct complaint against Eastern Cape high court Judge President Selby Mbenenge, accusing him of sexual harassment.
While still in its early days, the Judicial Conduct Tribunal investigation into Mbenenge has brought up searching questions about how sexual harassment — a form of gender-based violence and abuse of power — manifests and is dealt with in the judiciary.
The technical legal definition, in terms of the Employment Equity Act of 1998 and its Code of Good Practice, is simply “unwanted conduct of a sexual nature, expressed physically or non-physically, directly or indirectly, verbally or non-verbally, which ultimately impairs [the victim’s] dignity”. But it’s not simple at all.
In light of its complexity, a considerable amount of the tribunal’s time has been devoted to parsing through text messages; images and emojis and physical interactions between Mengo and the judge to establish if there was sexual harassment.
But, even at this early stage, it is not clear what specific metrics the tribunal will use to assess the merits of this complaint. Will it focus on the narrow legal definition of “sexual harassment” in the Act and Code of Good Practice?
Or will it focus on the more expansive definition of “judicial misconduct” in the Code of Judicial Conduct, which includes the legal duty of a judge to act honourably, in both their professional and private lives, including the avoidance of impropriety?
These are uncharted waters, and regardless of its decision, the tribunal will set a precedent for future cases. What is clear is that a policy standard needs to be set for how judicial misconduct of a sexual nature is dealt with.
How sexual harassment is investigated matters
Beyond what the tribunal is investigating, how the investigation is being conducted also matters. The sometimes-aggressive nature of Mengo’s cross-examination by Mbenenge’s legal team has also drawn disquiet, with a fear that it will discourage future victims from stepping forward.
On the other hand, some feel that, because of the high stakes involved (including potential impeachment for Mbenenge), it is necessary to test these allegations through vigorous cross-examination. Again, a clear policy standard needs to be set, to provide guidance for all tribunal investigations, and ensure fairness to both the complainant and respondent judge, and justice for all.
Beyond the technicalities, there is also the question of whether systemic problems such as sexual harassment can be dealt with through “normal” disciplinary proceedings like the Judicial Conduct Tribunal.
This question is being asked in light of an investigation into another senior judicial officer, KwaZulu-Natal regional court’s president, Eric Nzimande.
He faces 50 counts of misconduct, including sexual harassment and abusing his power to appoint acting magistrates in exchange for sexual favours. Some of the acts complained of occurred within months of his permanent appointment as head of the country’s largest regional magistrates’ court system in 2011 and spanned several years thereafter.
In light of this, there are serious questions about whether a separate investigation into systemic sexual abuses should be opened in this case.
The legal community’s silence
Sexual harassment is a taboo subject, making it difficult to detect and combat. In 2024, researchers at the University of Cape Town Law Faculty’s Democratic Governance and Rights Unit (of which Judges Matter is part) released two complementary research reports which looked at the phenomenon.
The first report, titled Isidima, was based on an anonymous survey of 6 000 court users (lawyers, staff and lay people) in five rural and urban courts. A small (1.9%), but disquieting, number indicated that they had either experienced sexual harassment themselves or knew someone who had.
Similarly, in the second report, titled Under Pressure — Magistrates’ Perceptions Survey, one in eight (13%) of the 230 magistrates surveyed said they or a colleague they knew had been sexually harassed “once or twice”. Although both studies were inconclusive, they do indicate a perception of sexual harassment in the courts.
While women have legally been allowed to practice law for just over 100 years, the South African legal profession is still heavily male dominated. According to business research firm Who Owns Whom, as at 19 April 2024, 55% (18 308) of 33 245 attorneys, 70% (7 251) of 9 676 advocates, 56% (116) of 254 judges and 49% (910) of magistrates were men. A strictly hierarchical, conservative culture also makes the legal profession vulnerable to sexual and other forms of abuse such as bullying. Significantly, it breeds a culture of silence.
A 2019 research report by the International Bar Association, titled Us too? Bullying and Sexual Harassment, noted that South Africa had a higher prevalence of sexual harassment than the global average.
“[S]exual harassment disproportionately impacts younger members of the profession — one in five respondents younger than 35 had been sexually harassed within the past year,” the report found. Furthermore, “[t]his misconduct resulted in 25% of sexual harassment targets indicating that the conduct contributed to them leaving or considering leaving their workplace”.
The report confirmed an earlier research report titled Transformation of the Legal Profession, by Wits University’s Centre for Applied Legal Studies, which found sexual harassment — alongside racial, gender and class discrimination — was a key barrier to women’s advancement in the legal profession.
Clearly, a broader conversation needs to be had about the pervasiveness of sexual abuse in the legal community, including its long-term damage to people’s careers, particularly that of women.
The General Council of the Bar’s stated intention to investigate sexual abuse allegations brought by a person outside the legal community against Jeremy Gauntlett SC KC, should add impetus for the legal community to look inward.
So what is to be done?
Researchers at the Democratic Governance and Rights Unit are undertaking a research project trying to understand the extent of sexual abuse and sexual extortion in courts in South Africa and Malawi.
Preliminary findings from focus groups, an online survey and structured interviews with key informants, show a groundswell of support for key interventions to deal with the problem, including:
- An independent, rigorous process for investigating complaints of sexual harassment and other abuses of power of a sexual nature. Such a process would ensure there are clear policy guidelines for investigating complaints in a swift and efficient manner, which protect the dignity of all persons involved.
- While the court ecosystem has numerous roleplayers who all fall under different legal frameworks (including judicial officers, prosecutors, private lawyers, court administrative staff and outsourced staff such as cleaners and security), there should be an overarching policy that provides minimum guidelines to support alleged victims and those in authority responsible for receiving complaints. What’s clear from the research so far is that senior officials like court managers often don’t know how to navigate this complex terrain.
- Such a policy would also establish a reference group for dealing with complaints of sexual harassment. The group would assist in providing oversight over the implementation of the policy. This includes establishing a core group of skilled investigators and trained presiding officers who could be deployed to assist the Magistrates Commission and the Judicial Service Commission in dealing with all the nuances of sexual harassment cases.
- The policy would ensure minimum mandatory training is provided to sensitise all stakeholders on how sexual harassment manifests, how to report it, how to receive reports of sexual harassment and how they should be dealt with.
- In addition, the policy would provide minimum timeframes for investigating bodies to deal with complaints, the psycho-social support that would be offered to alleged victims, standard procedures to guide the frequency of updates to the victim as well as how they would be treated throughout (including during cross-examination and other inquisitorial processes).
- Similarly, the policy would ensure a standard manner of collecting and collating data around sexual harassment cases and ensure that the data is monitored, analysed and frequently communicated, in a transparent manner, to all stakeholders.
Chief Justice Mandisa Maya has already undertaken to review the current policy framework in the judiciary, including developing a brand-new policy to combat sexual harassment. It is not clear how long this review will last but the events of the last few weeks clearly show the need for urgent action.
But the task does not only rest on her shoulders — the entire legal community needs to come on board.
This includes statutory bodies like the Judicial Service Commission, the Magistrates’ Commission, the Legal Practice Council, the National Prosecuting Authority, the voluntary advocates’ societies and other organisations such as the Law Society of South Africa.
The research demonstrates that there is a pressing need for rigorous, sustainable solutions.
When it comes to sexual harassment, the legal community is at a time of reckoning. Leaders need to take on the mantle and signal that they take this issue seriously, for the greater good.
Zikhona Ndlebe and Mbekezeli Benjamin are researchers at Judges Matter, a project of the Democratic Governance and Rights Unit at the University of Cape Town.