A judicial tribunal has cleared Eastern Cape judge president Selby Mbenenge of gross misconduct in a sexual harassment case. Chris Barron asked Alison Tilley, head of judiciary watchdog Judges Matter ...
Q: Is this a green light for sexual harassment in the judiciary?
A: It will certainly cause complainants to think twice before coming forward, and that inevitably will have consequences in terms of holding people to account.
Q: It’s not exactly a message of zero tolerance for sexual harassment of junior staff by senior judges, is it?
A: No. I think it indicates a decision that doesn’t take into account the seriousness of the imbalance of power between judge presidents and the complainants, and that’s something that really is emphasised in our law dealing with sexual harassment.
Q: Is the tribunal, in effect, saying we should ignore the fact that the complainant is a relatively junior employee and the respondent one of the most senior judges in the country?
A: Yes. The tribunal treats them both as consenting adults, but that is not the framework that one should use in assessing whether sexual harassment did or didn’t take place.
Q: Was finding Mbenenge guilty of misconduct a cop-out?
A: The finding of misconduct itself is not a cop-out. The question will be as to what the sanction is.
Q: Won’t the sanction be far lighter than if the finding had been one of gross misconduct rather than misconduct?
A: Yes. A finding of gross misconduct might have justified impeachment.
Q: If his WhatsApp messages to the complainant is not gross misconduct, then what is?
A: The messages between the parties that they agree were indeed exchanged certainly seems to me to be misconduct of a serious nature. It might be that it is not gross misconduct
Q: What message will it send if he is allowed to return to the bench?
A: That sexual harassment is tolerable, and that even in a situation where we have this kind of behaviour over such a long period of time and a complainant who is prepared to come forward, that that’s acceptable.
Q: Are you concerned by reports that he has in fact gone back?
A: Yes, I understand that he has. And that runs counter to his undertaking that he would remain on special leave until the process was complete. And the process isn’t complete.
Q: What does it do to the rule of law when the judiciary is held in contempt?
A: It undermines the rule of law. And I think this tribunal, these complaints, the findings, have undermined respect for the judiciary. We rely more and more on the judiciary to uphold the rule of law, particularly in the times we find ourselves, so we’re very concerned about the number of conduct processes against sitting judges. It’s something we need to take seriously and address.
Q: Is there a need to re-examine the process of appointing judges?
A: Yes, that is something we’re actually working on at the moment. It does seem that the appointments process needs to be improved to make sure that appointments are better across the board.
Q: Should the process of holding judges accountable be quicker?
A: They do need to be prosecuted with speed and urgency; it is in general taking too long. Once a question mark is raised over a judge, it really does need to be resolved as quickly as possible.
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