Zondo ignores Mthatha judge’s unsubstantiated ‘open letter’ claims
RAY HARTLE
Eastern Cape high court Judge Lindiwe Rusi’s so-called “Open letter to The
Honourable Chief Justice Raymond Zondo”, dated December 5 2023, is a verbose,
meandering, pamphlet ranging across “vocational paths”, grotesque gossip among judges
and lawyers, her belief in social justice, “the victim mentality”, and darn destructive
little foxes.
Ordinarily, I may not have been drawn to commenting on the letter, except
that Rusi implicated me in a “narrative” of “troubling issues that undermine”
the judiciary.
She highlighted a “pervasive narrative… that women can only ascend to
positions of power and influence through inappropriate conduct or by succumbing
to sexual advances from male mentors”.
And she said that my writing as a journalist in news media, “regrettably
legitimised” these narratives.
These are very serious, unsubstantiated, charges against me.
I reported in City Press in March that I wrote to the Office of the Chief
Justice on December 19 last year, asking if Zondo had received the open letter
addressed to him, whether the open letter was an appropriate method for a judge
to raise complaints, if it contravened any of the prescripts of the judiciary’s
code of conduct, and if Zondo had acted or intended to act in respect of the
letter’s contents, or over Rusi’s authorship.
In a December 22 response, Zondo replied that he was told about the letter,
but had never received anything from Rusi.
On January 22, I asked if Zondo had yet received Rusi’s open letter.
In a reply dated February 2 which I only received on February 16, the OCJ confirmed
he had never received the open letter from Rusi and had now asked his office to
contact Rusi’s office to obtain that letter.
I wrote again on February 29, asking if Zondo had subsequently obtained Rusi’s
letter.
On March 8 2024, the OCJ replied that Zondo “did ultimately get” Rusi’s
letter “but was not going to respond by way of an open letter”.
Zondo believed “Rusi should not have written an open letter to him but
should have used internal channels if she had concerns that she wished to
raise”, the OCJ stated.
The office said Zondo had written to acting Eastern Cape Judge-President
Zamani Nhlangelela, asking him to advise Rusi “appropriately”.
And that’s where the matter apparently rests, as far as Zondo is concerned: Rusi
should not have written an open letter to him, but he wasn’t going to tell her
directly. And nothing at all would be said to anyone about the contents of the
letter.
The “open” letter’s first target was Makhanda high court official Andiswa
Mengo, the complainant in a charge of sexual harassment against judge-president
Selby Mbenenge, which will be heard by a judicial tribunal.
Rusi accused Mengo of tormenting her with WhatsApp status alerts, and of
“cyber bullying”.
It may have been useful for Rusi to detail exactly what the sequence of events was, and exactly what occurred between herself and Mengo. My understanding of Rusi’s interaction with Mengo is that it was
confrontational in nature.
Mengo is an employee of the Office of the Chief Justice but, as far as I
know, Rusi has not lodged a complaint against her in terms of labour relations
codes. Perhaps necessary procedural parameters, and thresholds for establishing
the substantiveness of a complaint, were simply too onerous.
Next, Rusi lamented the “growing perspective” within the judiciary and the
legal profession, that she was appointed as a judge due to her association (she
used much more colourful albeit legally problematic language) with Mbenenge.
She did not name any judges or lawyers.
But she was happy to name me, stating that an article I wrote for the Sunday
Times on March 5 2023, had undertones of these narratives, and
legitimised scurrilous accusations against Eastern Cape high court officials
contained in an anonymous letter circulated around November 2021.
That article included reporting on Rusi and judge Mandela Makaula interposing
themselves in the formal complaint process through informal and unsanctioned
discussions with Mengo.
Rusi clearly does not appreciate the import of the claims against her which
I reported: On behalf of “uTata” Mbenenge, she called the complainant in a
formal judiciary process against Mbenenge, to discuss a potential meeting
between the parties, and related issues.
My reporting was precisely to give Rusi an opportunity to explain her
action. She declined to comment, citing the fact the matter was before the
Judicial Conduct Committee. I pressed her on why she felt that it was
okay for a judge of the high court to interfere with a complainant outside of a
formal process. She giggled and then said “I won’t comment.” After she declined
to comment for a third time, I ended the call.
In subsequent correspondence with the Sunday Times, she denied interposing
herself in the complaint process.
My reporting did not make a claim about the merits of any judicial
appointment, including that of Rusi. I have denied it previously and I
reiterate that I did not cast or attempt to cast aspersions on Rusi’s
appointment as judge.
I also have never repeated any of the scurrilous allegations contained in
the anonymous letter sent to me in November 2021. In the absence of firm
evidence of the veracity of the claims, repeating them would simply invite justifiable
legal action by named parties.
However, I did report that JP Mbenenge and Mthatha attorney and Judicial
Service Commission member Mvuso Notyesi, now understood to be a key member of Mbenenge’s
camp, spoke strongly in support of Rusi in her interview, defending her against
what were claimed to be spurious allegations.
Mbenenge’s backing of Rusi, and Rusi’s problematic engagement with the
complainant in the complaint Mbenenge faces, suggested a relationship of
mutuality or reciprocal support between Mbenenge and Rusi.
Instead of firmly denying such mutuality, Rusi anticipated “that some may
misconstrue” her open letter “as a manifestation of the ‘victim mentality’”.
She may be spot on. Why else would she pen this letter? It certainly was not
to clear an unfair association between herself and Mbenenge which arose firstly
from the judge-president’s unwavering support of her during her JSC interview
in October 2021 and, secondly, from her unprocedural reaching out to Mengo on
behalf of the JP.
She was also concerned that some judges “often find themselves in a
scandalous environment where even their selfless acts are cast in a dubious
light”. I agree that judges sometimes are victims of baseless, irrational
vitriol.
But that assertion cannot be sustained in relation to her own action towards
a complainant, nor does it relate to the situation in which Mbenenge finds
himself.
In the latter instance, a trio of sober-minded judges on the Judicial
Conduct Committee ruled that Mbenenge faces “a prima facie case, which, if
substantiated, will likely result in a finding of gross misconduct”.
Rusi presents herself in the open letter as the epitome of the woman judge
striving for social justice, equality and dignity for all, and against
conservative opponents of transformation, and acts of psychological violence
towards younger women breaking down patriarchal tendencies.
Yet, she offered no comment in the open letter on the substance of the very
serious complaint against Mbenenge, nor a smidgeon of empathy for what Mengo
alleges she experienced. And says nothing about the nub of my article – that
she may have been trying to broker a settlement of the complaint on behalf of
Mbenenge, outside of the formal JSC processes.
Ultimately, the open letter deflects away from the substantive matter which
ought to be front and centre for anyone concerned with the administration of
justice in the Eastern Cape high court – that the judge-president of the
Eastern Cape, Selby Mbenenge, faces a charge before a judicial tribunal that he
sexually harassed a court official.
In a richly ironic turn in the open letter, Rusi used a phrase from the Old
Testament book Songs of Songs chapter 2, verse 15, “it is the small foxes that
destroy the vine”.
Clearly I am being likened to one of the destructive little foxes, that must
be caught – although Rusi does not state this sentiment emphatically.
The context of the extracted verse is a dialogue of love between a man and a
woman, at times downright erotic, but which biblical scholars historically have
asserted is a metaphor of the relationship between God and God’s people. The
book starts with “Let him kiss me with the kisses of his mouth” and mingles
images of romance and desire with words about the ordinary activities within a
rural, agricultural landscape.
In chapter 2, verse 14, the man exhorts the woman to show her lovely face,
express her sweet voice. And then in the next verse, encourages her to “catch
for us the foxes, the little foxes that ruin the vineyards, our vineyards that
are in bloom”.
Rusi left out from her open letter the crucial contextualising words,
especially the urging or inciting phrase “catch for us”. Perhaps I should be grateful
that she did.
But she might have been wiser in following the theoretical position of her
boss, long before he was considered for the special leave he is currently on.
In a 2018 address to the Nelson R. Mandela School of Law at the University of
Fort Hare, Mbenenge stated:
“Much as I am allowed to participate in public debate on matters pertaining
to legal subjects, the judiciary, or the administration of justice, I am
precluded from expressing views in a manner that may undermine the standing and
integrity of the judiciary.”
At another place in his address to the UFH law students, Mbenenge said:
“The Constitution should be seen as a living document that guides not only
the government and public institutions, but all those who come into contact
with it. We are expected to shape and align our way of life to be consistent
with the values embodied in the Constitution. All law and conduct should be
consistent with it; our private lives should reflect the values enshrined
therein. Wherever we set our foot we should constantly remember to uphold those
values.”
In the same year, Mbenenge exhorted law students at Rhodes University to “fine-tune
your self-awareness by becoming consciously mindful of the role you play in any
given group – your positive and negative contributions… by looking at
yourself through the eyes of others”.