Judge's sexual harassment hearing pits the old guard against a brave new world
The prolonged Judicial Conduct Tribunal probe into a complaint of sexual harassment lodged against Eastern Cape Judge President Selby Mbenenge (64) is drawing to a close.
Gender expert Dr Lisa Vetten is expected to give evidence on the nature of the power dynamics in this case on 20 June. The complainant, Andiswa Mengo (41), worked as a judge's secretary in the division.
It took three years for the complaint to reach the tribunal. In June 2023, a preliminary Judicial Conduct Committee hearing found a prima facie case of gross judicial misconduct and recommended the appointment of the tribunal.
The tribunal's chairperson, retired Judge Bernard Ngoepe, has made no secret of his need to fully understand the new language of texts and emojis and its subtexts of bananas, eggplants, dripping syringes and ripe peaches. Ngoepe has not been shy about asking how this modern technology all works.
In so doing, he has also educated many of those watching the hearings livestreamed on several platforms who are lay users and need just as much educating. At first Ngoepe was of the opinion the hearings should not be public because they would tarnish the image of the judiciary, but the opposite is true.
He also has to determine whether the relationship could have been consensual, as alleged by Mbenenge, who has admitted to the relationship but denied many of the allegations.
The advocacy project Judges Matter has been at the forefront of documenting each step of the process and also set out what Ngoepe's options might be. Judges found guilty of misconduct face a range of potential outcomes, from minor corrective measures to impeachment. This is what happened to former Western Cape judge president John Hlophe, who was impeached in March 2024. The tribunal had ordered 'drunk driving' former judge Nkola Matata, who was also impeached at the same time as Hlophe, to pay a R1.5-million fine.
According to Judges Matter, for less serious offences, punishments might include 'an apology, reprimand or corrective training, with the judge potentially paying for these measures'.
A gross misconduct finding could lead to impeachment with the Judicial Service Commission recommending removal from office, requiring a two-thirds vote by the National Assembly.
Clash of wor(l)ds
Mbenenge's team of legal heavyweights, advocates Muzi Sikhakhane and Griffiths Madonsela, are old-style patriarchs who might view the entire matter as 'woke', but they are up against an equally pugnacious team. This includes the evidence leader, advocate Salomé Scheepers, and Mengo's counsel, advocate Nasreen Rajab-Budlender.
What has played out at the tribunal since it kicked off in January is a microcosm of the greater clash between the old and the new, including the law and language and 'culture' itself. What has also been highlighted is the kind of professional conduct that is legislated and enforceable in the public workplace in South Africa.
Some of the women who have testified and appear to have 'thrown' the male old guard include legal forensic linguist Dr Zakeera Docrat. She gave expert testimony with regard to the context of the WhatsApp messages between Mbenenge and Mengo, and the meaning of a range of emojis.
The old boys had no idea whom they were dealing with and seemed startled to learn quite late into Docrat's testimony that she speaks, reads and understands isiXhosa. She had made no attempt to show this off. Then these guys wanted to know her 'route' to this 'legal forensic linguist' qualification. Where did she get this qualification? What is it actually? And so forth.
Docrat had nothing to prove and rattled off her illustrious academic career, which includes the goal of ensuring justice is attainable for speakers of all 12 languages in South Africa.
What to do?
Sikhakhane and Madonsela objected to Vetten's late addition as an expert gender witness, claiming this was irrelevant and that the matter was too far down the line for new arguments. Ngoepe, aware that all eyes are on him and that the new territory here may make many feel out of their depth, allowed Vetten's evidence to be heard.
The entire tribunal and the public nature of the hearing has highlighted the issue of sexual harassment of women in the workplace. But was Mbenenge's conduct so gross that it warrants impeachment?
Mbenenge, as Judges Matter has noted, 'is highly regarded as a senior lawyer. As judge president, he is credited with transforming the Eastern Cape High Court division through unifying the disparate seats and attracting some of South Africa's finest legal minds to serve as judges of that court'.
Mbenenge is the second-most senior judge president and the sixth-most senior judge in judicial leadership in South Africa.
This is the first major case of sexual harassment to reach the formal complaints process of the Judicial Service Commission and the first time a judge is being formally investigated by a tribunal for sexual harassment. DM
This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R35.
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