Raymond Hartle
A Judicial Conduct Tribunal (JCT), which is investigating the complaint of sexual harassment against Eastern Cape high court Judge President Selby Mbenenge will be heard entirely in public, the president of the tribunal, retired Gauteng Judge President Bernard Ngoepe ruled at the start of proceedings today (Monday).
Ngoepe had previously ruled that the tribunal would proceed on a hybrid basis, partially in public, and partially in camera, finding that a fully public hearing would cause irreparable damage to Mbenenge, and the judiciary as an institution. He said then that damaging the image of the judiciary in that way could not be in the public interest.
Mbenenge faces a January 2023 complaint that he sexually harassed a woman Makanda high court official in racy face-to-face and WhatsApp message interactions during 2021 and 2022.
When media queries were submitted on the complaint in February 2023, the judge president issued a fruitless “desist” demand through an East London firm of attorneys to ward off media publication of the allegations.
He has opposed a public hearing of the tribunal’s proceedings until today, but through his counsel Muzi Sikhakhane SC, told the tribunal he had changed his position and now wanted a public hearing.
Ngoepe heard Sikhakhane’s submission in chambers and called Chief Justice Mandisa Maya to consult with her, a requirement of the Judicial Services Commission Act on whether or not tribunal proceedings must be heard in camera – the default position – or in public.
Back in the hearing, Ngoepe stated: “The hearing of this matter will be held publicly.”
Mbenenge is the first judge in South Africa to face allegations of sexual harassment.
Among the allegations the complainant has raised are that Mbenenge sent her an image of a penis, and that he called her into his chambers in the Mthatha high court and, pointing to his crotch, said “do you see the effect that you have on me?”
Then chief justice Raymond Zondo, in an initial assessment, did not find that the complaint was frivolous or lacked substance, referring it to the Judicial Conduct Committee, a sub-committee of the Judicial Service Commission.
In a September 2023 ruling, the JCC found that the complaint established a prima facie case which, if substantiated, was likely to result in a finding of gross misconduct against Mbenenge.
It recommended to the JSC that a tribunal should be appointed to investigate and report on the complaint, with Zondo appointing Ngoepe to lead it.
The judge president has been on special leave since 2023. The decision by Zondo to grant the leave was used by the JSC as the basis for its decision not to advise President Cyril Ramaphosa to suspend Mbenenge pending the outcome of the tribunal proceedings.
However, advocacy organisation Judges Matter pointed out at the time that the JSC's decision broke with 10 years of precedent in which a judge accused of gross judicial misconduct was automatically suspended pending a tribunal investigation.
The JSC decision, said the organisation, undermined the seriousness which the JSC professed to have taken towards sexual harassment allegations.
Ngoepe also highlighted the special leave dispensation granted to Mbenenge in his original ruling on the hybrid hearing as “a clear message” to show that appropriate steps would be taken to show that a sexual harassment complaint would be investigated.
While Ngoepe noted that an in camera JCT hearing was the default position spelled out in the Judicial Service Commission Act, many tribunals have proceeded in the full glare of the public and media.
The complaint against Mbenenge will be assessed outside of the ambit of the judiciary’s sexual harassment policy, which was only signed off by Zondo a day before he retired at the end of August 2024.
Chief Justice Mandisa Maya famously raised the absence of a sexual harassment policy for the judiciary in an interview before the JSC in 2021.
But she has also said that the 2012 Code of Judicial Conduct covers behaviour by a judge which could amount to sexual harassment. That code enjoins a judge to act honourably, comply with SA law, and to avoid impropriety and conduct that may prejudice the court system.
The JSC is also working towards having in place an interim policy which would allow it to recommend suspension of a judge while a complaint is still at an early stage of assessment.
In 2021, Eastern Cape high court staff were warned by the OCJ’s provincial head of court operations Denim Kroqwana that sexual harassment involving court officials was rife.
One staffer, who spoke at the time on condition of anonymity, said Kroqwana circulated an internal review document which listed grievances formally raised by OCJ officials in the province.
At the top of the list was sexual harassment, with complaints about officials insulting each other and arriving at work drunk being the second and third most frequently raised grievances.
Retired Gauteng Judge Cynthia Pretorius and advocate Gift Mashaba, SC, of the Pretoria Society of Advocates constitute the tribunal panel alongside Ngoepe. The tribunal is scheduled to sit for two weeks
