Judiciary to have sexual harassment policy soon – Maya *

RAY HARTLE

South Africa’s deputy chief justice Mandisa Maya, in the Bhisho high court on Friday to celebrate a hundred years of SA women lawyers, said the country’s judiciary would “very soon” have a sexual harassment policy to protect women within the court system.

Maya presided at an emotional ceremonial court sitting, during which Justice Minister Ronald Lamola announced the conferring of senior counsel status on Qumbo-born Nona Gosa, the first African woman to be appointed in SA as an advocate but blocked from receiving the designation by the white male-dominated Cape bar.

Maya confirmed to the Daily Dispatch that she had forwarded a draft sexual harassment policy to chief justice Raymond Zondo for his consideration.

“We have formulated a draft which the CJ is considering now. I’m pretty sure that he will be unveiling it very soon. We did this some months ago already but there is just so much going on and there were delays.”

Maya said the draft would “definitely” be presented to the “heads of court cluster” comprising judges-president, and “probably” to the Judicial Services Commission as well, although she did not think it had to be approved by the JSC.

Eastern Cape high court judge-president Selby Mbenenge, facing a charge of sexual harassment lodged by Makhanda court official Andiswa Mengo with the Judicial Complaints Committee, skipped Friday’s event.

He has avoided other high profile events, including a JSC hearing in April and justice minister Ronald Lamola’s July visit to Makhanda to pacify residents about the relocation of the seat of the high court.

Mbenenge was also slated to host Friday’s event, according to the official programme, but guests were told he was traveling elsewhere.

Maya famously  criticised the judiciary during her interview for the CJ position in February 2022, for not having a sexual harassment policy. Later she was tasked with leading the work on a policy.

On Friday, she told the Daily Dispatch the absence of a policy was not a problem, given the 2012 Code of Judicial Conduct. That policy includes provisions for a judge to act honourably, comply with SA law, and to avoid impropriety and conduct that may be prejudicial to the business of the court.

She firmly refused to provide progress on a second policy of the JSC – that a judge facing a charge of gross misconduct such as sexual harassment, may be suspended pending finalization of the complaint – a proposal confirmed in April as resulting directly from the difficulties in whjich Mbenenge finds himself.

Currently, in terms of the Constitution, only President Ramaphosa can suspend a judge suspected of errant behaviour and may do so only on the advice of the JSC, and after a recommendation of the Judicial Conduct Committee for a formal tribunal to be established, which may lead to the judge’s removal from office.

“You have to speak to the head of the judiciary [Zondo],” Maya said on Friday about the JSC initiative, adding that she would facilitate a media interview with the chief justice on the subject.

She acknowledged that, outside of her formal title, she had a responsibility towards women in law, as the top woman judge in the country.

But when pressed on what she might say to women on the fact that the judiciary had allowed Mbenenge to continue his usual duties, including potentially occupying the same office spaces as the woman who had complained against him, she declined to comment.

“I’m going to convey these concerns directly to the chief justice after I leave here,” she said.

National Association of Democratic Lawyers (Nadel) representative and Cape Town attorney Seehman Samaai, told the ceremonial court sitting that women in the legal sector faced violence, bullying and sexual harassment every day.

Women lawyers “are aware of these issues but speak in hushed tones, afraid to call [men] out. It is imperative that we break this silence. We must stand united and declare: ‘Enough is enough.’”

Mbenenge told the Dispatch earlier this year, that there was no legal requirement for him to step away from his duties, and that calls for him to do so were “tantamount to prejudging” the complaint.

Justice minister Ronald Lamola adopted a similar attitude when questioned by journalists in July, stating that he would articulate his views as a member of the JSC once that body engages with the matter.

However, instead of being a marker of guilt, precautionary suspension may be an important tool to ensure that workplace conditions are conducive to a fair process for all parties, that a complainant is not subjected to a work environment which is hostile or triggering, that there may be no potential for tampering with evidence or influencing a potential witness.

Such considerations underpin the approach proposed by an online information collaboration between the Commission for Conciliation, Mediation and Arbitration, and Business Unity SA.

A senior private sector human resources executive, told the Dispatch this was in keeping with practices in the major corporations when a chief executive was accused of a serious infraction like sexual harassment.

* As published in Daily Dispatch – 11 September 2023

Judiciary to have sexual harassment policy soon – Maya *

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