Sexual harassment complaint against Eastern Cape Judge President set for January
But the public will not have access to all the evidence
A Judicial Conduct Tribunal probing a complaint of sexual harassment against Eastern Cape High Court Judge President Selby Mbenenge will sit early next year. Photo: Oupa Nkosi for Judges Matter (used with permission)
- A Judicial Conduct Tribunal probing allegations of sexual harassment against Eastern Cape High Court Judge President Selby Mbenenge will start early next year.
- But some evidence, including WhatsApp messages and photographs he allegedly sent to secretary Andiswa Mengo, will not be heard in public.
- Tribunal chair Bernard Ngoepe has ruled that it would not be in the interests of the judiciary for all evidence to be publicly heard or broadcast live.
A Judicial Conduct Tribunal probing a complaint of sexual harassment against Eastern Cape High Court Judge President Selby Mbenenge, the first such case in South Africa against a sitting judge, will commence early next year.
The complaint against Mbenenge, which could result in his impeachment, was laid by Andiswa Mengo, a secretary who works for another judge in the Eastern Cape. The hearing has been set down for 13 to 24 January.
But some of the evidence will be led behind closed doors.
The tribunal president, retired Judge Bernard Ngoepe, has ruled that the proceedings will be held partly in camera âin the interests of the judiciaryâ.
Mengo and the SABC had made submissions to the tribunal that the hearing should be open to the public and broadcast live, while Judge Mbenenge argued that the entire hearing should be held in camera.
Judge Ngoepe, in his ruling, said that the Judicial Service Commission Act provided for an âin cameraâ default position but gave him, as the tribunal president, discretion to open the hearing if it were in the public interest for the purposes of transparency.
He said both Mengo and the SABC had largely based their arguments on the importance of a public hearing and that the matter was in the public interest.
Mengo, he said, had raised the âscourge of abuse and sexual harassment of women at workâ. But she had not given any explanation how the fight against this would be undermined by an in camera hearing.
This, he said, was venturing into the realm of conjecture.
âThe purpose of these proceedings is not to fight other battles. They are tailored to deal with complaints, specifically against judges.
âWe must be careful not to weaponise these proceedings to fight other battles,â he said in his ruling dated 9 December 2024.
Judge Ngoepe said Judge Mbenenge had argued that the allegations had the âpotential to cause untold, irreparable reputational damage, were they not to be sustained in the final analysis and the proceedings end up being accessed by the public and the mediaâ.
Judge Ngoepe said looking at the nature of the allegations, there was merit to his concerns.
âWhile he concentrated on the reputational damage to himself, I will concentrate on possible damage to the judiciary because he is not just a member thereof, but one of its leaders.â
He said that while the purpose of the prosecution of complaints against judges was to protect the image of the judiciary, the Act sought to ensure that while that was being done âwe do not unwittingly cause irreparable damage to the very image sought to be protectedâ.
He said this could happen where damaging allegations, aired in public, were later found not to be true.
âBy merely holding these proceedings, a strong and unequivocal message has already been sent out there that it does not matter how junior you are in the workplace, your sexual harassment complaint would be diligently investigated and appropriate steps taken against the accused person irrespective of their seniority. I do not see how this message can be nullified by an in camera hearing.â
He said the fact that Judge Mbenenge had been placed on special leave was another âclear messageâ.
Judge Ngoepe said any acquittal would not repair any possible damage to the judiciary; there would not be a âpublic cleansing ceremonyâ during which the damaging allegations could be erased or retracted.
Damaging the judiciary could not be in the public interest, he said.
He ruled that the proceedings will be held partly in public and partly in camera. Evidence relating to the WhatsApp messages, which Judge Mbenenge did not deny the contents of or that they came from him, would be heard in public and could be broadcast live.
But evidence relating to messages and pictures which he denied came from him or his cellular phone, and messages and pictures relating to some indecent incidents alleged to have occurred in his chambers, would be held in camera.
Judge Mbenenge has been the Judge President of the Eastern Cape since November 2017.
The allegations by Mengo relate to alleged unwanted interactions in 2021 and 2022 which Judge Mbenenge claimed were consensual. She first filed the complaint in January 2023.
In September 2023, a Judicial Conduct Committee ruled there was a prima facie (on the face of it) case of gross judicial misconduct against him which, if confirmed, could lead to his impeachment. The Judicial Service Commission then appointed the tribunal to hear the matter.
Judges Matter has reported that this is the first major case of sexual harassment to reach the formal stage of the complaints process. However, it criticised the fact that Judge Mbenenge was allowed to go on special leave, instead of being subjected to the usual automatic suspension.
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Letters
Dear Editor
Judge Ngoepe has erred in his decision to hold parts of the inquiry "in camera". Open, public trial is the ultimate safeguard against abuse of power. Members of the Judiciary especially must never expect to operate in a cocoon of secrecy. The JP is called upon to answer to specific charges of gross misconduct where a prima face case has been made. The public interest, coupled here with the need for escalated levels of protection from exploitation in the workplace, is paramount. Judge Ngoepe must be called out for shielding the patriarchy in flimsy legalese. The full hearing must be televised with the usual standard of censorship to protect children
Dear Editor
The South African government promulgated a new Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace. This new code came into effect on 18 March 2022. The requirement for the complainant to establish that the perpetratorâs actions were âunwelcomeâ is problematic.
International Best Practice: Under Israelâs sexual harassment laws, sexual harassment will be established even where the person harassed has not shown the harasser that the harasserâs actions were unwelcome where the perpetrator occupies a position of power and influence vis-Ă -vis the victim. This is contained in Israelâs Prevention of Sexual Harassment law, 5758 of 1998.
One Israeli law firm, Herzog Fox & Neeman had this to say about how the Law deals with what it calls relationships of subordination or dependence;
âAs mentioned already, some conduct only counts as harassment under the Law if the other party shows a lack of interest or consent. However, where a relationship of subordination or dependence exists, the harassed party does not have to show their lack of interest to repeated sexual overtures. The Law recognises that when a relationship of subordination exists, the harassed party may be afraid to show his or her true feelings about [the] conduct [of] a superior.â
Where a relationship of subordination exists, the assumption, under Israeli law, is that the perpetratorâs conduct is in fact and in law unwelcome. As the Israeli National Labour Court put it;
âThis assumption is mainly based on the differences in power or authority levels that exist between the master and the subordinate for which it is doubtful whether the subordinate is free to express his or her opposition.â
If we were to adopt this approach of the relationship of subordination and/or dependence in South Africa, complainants would no longer have to prove that they had made it clear that the conduct of their senior and influential perpetrators was unwelcome.
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