Following the revelation of sexual harassment as an ‘open secret’ in the legal community, Sonke Gender Justice has labelled the precedent-setting sexual harassment hearing against Eastern Cape High Court Judge President Selby Mbenenge as the “epitome of secondary victimisation and re-traumatisation”.
This week, Judges Matter shone the light on the importance of judicial tribunal hearings which deal with sexual harassment.
In an effort to further bring transparency and accountability to the judiciary, Judges Matter said: “Lawyers and judicial officers whisper about (it) in corridors and chambers but hardly ever speak about it openly. But even when they do, there is not enough done to deal with the structural causes and impacts of sexual harassment – particularly on women, who are most often the victims.
“Recent events, however, have shone the spotlight on the issue, demanding urgent action to resolve it. Some solutions, like an overarching anti-sexual harassment policy, have been proposed but they now need determined leadership to see them through.”
Earlier this month, all eyes were glued to the judge’s clerk who claimed that Judge President Mbenenge had sexually harassed her.
Andiswa Mengo, during the public hearings, broke down in tears as she testified, among other incidents, how Judge Mbenenge called her to his chambers and allegedly “fiddled” with the zip in his pants while displaying a “bulge” in his pants.
Sonke Gender Justice senior trainer, Thembelihle Ntandane, said sexual harassment in the workplace “is becoming a growing problem for women in the South African workforce”.
“It is even more alarming when it takes place in the judiciary, a system that is responsible for presiding over matters of sexual violation. Sonke shares the sentiments of Judges Matter, that more must be done to prevent and respond to sexual harassment in the judiciary.
“Sexual harassment in the workplace cannot be dealt with, without the consideration of the power dynamics that may exist between the perpetrator and the victim, especially in a male-dominated industry like the legal community. The tribunal of Mbenenge is momentous for how sexual harassment is viewed and responded to within the judiciary,” said Ntandane.
Ntandane said that the tribunal “failed to practice the principles of being survivor-centred, and allowed the legal team of Judge President to treat Mengo with contempt as though she was the perpetrator”.
“There is a need for the judiciary to assess the internal culture of the system and dismantle the patriarchal and misogynistic views men hold over women in the space. Sexual harassment is a systematic issue that needs, systematic change,” said Ntandane.
According to Judges Matter, the tribunal hearing against Mbenenge has brought up “searching questions over how sexual harassment – a form of gender-based violence and abuse of power – manifests and is dealt with in the judiciary”.
“These are uncharted waters, and regardless of its decision, the tribunal will set a precedent for future cases. What is clear is that there needs to be a policy standard set for how judicial misconduct of a sexual nature is dealt with.
“Beyond what the tribunal is investigating, how the investigation is being conducted also matters. The sometimes aggressive nature of how Mengo was cross-examined by Mbenenge’s legal team has also drawn some disquiet, with a fear that it will prevent future victims from stepping forward.
“On the other hand, others 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,” Judges Matter said.
The Women’s Legal Centre (WLC), who are representing Mengo in the matter, said they hoped this process would restore confidence in the judiciary and that it would inspire more women to speak out in the profession.
WLC said the case highlights the need for judicial processes that understand the complexities of sexual harassment, including its power dynamics and devastating impact on victims
WLC attorney Chriscy Blouws said: “Powerful men often succeed in silencing victims, particularly in workplaces like the legal profession, where systemic power imbalances are entrenched. Our client’s courage to come forward underscores the urgency of creating workplaces where women feel safe and protected.”