AMANDA GOUWS

With the release of the report on the sexual harassment case of Andiswa Mengo against the judge president of the Eastern Cape, Selby Mbenenge, those of us who have years of experience working with sexual harassment had the sinking feeling that we have seen it all before — perpetrators getting a slap on the wrist.

There are three categories of judicial misconduct in the Judicial Service Commission Act, varying by seriousness:

Category A, which involves lesser misconduct;
Category B, which covers serious but non-impeachable misconduct; and
Category C, dealing with gross misconduct, which may justify impeachment.

Judge Mbenenge was found guilty of category B, not C.

The complaint is one of unwanted and unwelcome conduct of a sexual nature.

The tribunal found that it was misconduct but not sexual harassment. This interpretation stems from the perspective that Mengo was a willing participant in flirtatious behaviour (if one can call naked pictures of private parts flirtatious).

The findings in this case have confirmed the belief that many women harbour — that men in positions of power are above the law when it comes to issues of a sexual nature

One of the problems with the findings is that the tribunal took a neutral stance about the two participants. It did not look at the difference in power between the two, as is argued by the Constitutional Court, and neither was it guided by South Africa’s equality legislation.

In order to create equality, we cannot only consider formal equality (treating everyone the same), but we also have to take into consideration substantive equality, where the vulnerability of groups has to be considered and power imbalances and structural disadvantage taken into account. This was not done. Formal equality benefits those in power; substantive equality takes contexts of power into consideration.

The findings in this case have confirmed the belief that many women harbour — that men in positions of power are above the law when it comes to issues of a sexual nature. Jacob Zuma was acquitted of rape because of a “lack of evidence” and because the complainant was branded as a “serial rape accuser” — someone who does not understand the meaning of consent.

Zuma said that Zulu culture demanded that he “satisfy an aroused woman”.

In both the Zuma and the Mbenenge cases, the blurry boundaries of consent play a major role. When is a woman consenting to sexual intimacy, and when is her consent absent, and is she being harassed or coerced? The tribunal struggled to establish whether consent was present or absent.

Sexual harassment constitutes a spectrum of behaviour that can be verbal, physical (unwanted touching and fondling), stalking, and increasingly, online or social media harassment. #MeToo showed us the pervasiveness of sexual harassment when millions of women clicked the link that indicated “me too”.

What stands out about the #MeToo campaign is men’s entitlement to sex, very often excused by them saying they did not know their behaviour constituted sexual harassment. Or in the South African case, the use of the “cultural defence” — Mbenenge said that in his Xhosa culture certain behaviour by a woman constitutes an interest in sex. Zuma said that Zulu culture demanded that he “satisfy an aroused woman”. Defending wrongdoing through culture can excuse any type of behaviour.

There is a big difference in power between Mbenenge and Mengo. She is a judge’s secretary in the court where he is the judge president.

This is a landmark case in South Africa because it involves the judiciary

Her behaviour is typical of a sexual harassment victim — in the beginning you play along or you sidestep in order not to offend the person who can make or break your career. This behaviour just encourages the perpetrator, who will escalate his behaviour.

When the victim realises the behaviour won’t stop, she may resign, ask to be moved somewhere else or make a complaint. Making a complaint has serious consequences for both parties, but it is the victim who is on trial, because the burden of proof rests on her evidence. Mengo’s evidence was viewed with suspicion, and it was shown that she was obfuscating the truth about certain issues.

While South African law requires companies and organisations to have sexual harassment policies and grievance procedures, the judiciary seems to be absolved from this. Our female chief justice, Mandisa Maya, had to write a policy on sexual harassment for the courts just last year. She points out that judges and magistrates are bound by the solemn affirmation to uphold the constitution and the human rights entrenched in it.

She also points out that South Africa has incorporated the Bangalore Principles of Judicial Conduct into its legal framework that enjoins judges to act ethically. According to the policy, the South African judiciary acknowledges that sexual harassment is unfair discrimination that undermines safety in the workplace and threatens the legitimacy of the courts as the custodians of the law.

This is a landmark case in South Africa because it involves the judiciary. It is now up to the Judicial Services Commission to determine what fate will befall judge Mbenenge.