Rules to prevent sexual harassment,
encourage reporting & protect victims,
signed off before chief justice’s retirement
RAY HARTLE
In one of his last official duties just a day before his retirement on August 31, former Chief Justice Raymond Zondo signed an anti-sexual harassment policy for South Africa’s judges and magistrates.
Zondo signed the long-awaited policy, which was developed by a committee headed by then deputy chief justice Mandisa Maya, who has replaced him as the head of the judiciary.
The new policy sets out the judiciary’s legal obligation to ensure a safe and healthy work environment. It affirms that allegations and complaints of sexual harassment “shall be responded to promptly and dealt with seriously, professionally, expeditiously, fairly, sensitively and confidentially.”
It also assures complainants that they will be “protected against victimization or retaliation under any and all circumstances” and should “feel comfortable bringing forward claims”.
“However, false allegations of sexual harassment will not be tolerated and whoever acts in bad faith will face disciplinary action.
“All members of the judiciary must be aware that violation of this policy will lead to disciplinary action.”
But the substance of the policy document was immediately slated by Judges Matter, for not being sufficient, as it “only refers possible complainants to the current ineffective complaint structures”.
Research and advocacy officer with the organisation, Zikhona Ndlebe said:
“The policy is not well considered. [It] relies too much on the current processes in place, which have not been helpful to complainants.”
Following a query I submitted to the Office of the Chief Justice on Friday, the new policy was emailed to me on Zondo’s instructions by his office manager, Sanelisiwe Mthombeni, a few hours before his tenure as chief justice ended.
The policy document has not been made public previously, but a draft copy of the document was shown to me recently by a court official who said: “You must have the benefit of information.”
While there are some changes between the draft and the final version of the policy, the substantive principles are the same. The final version still shows “Version: March 2023” on the first page, the version which was submitted by Maya to Zondo.
The policy defines conduct as any non-verbal, verbal or physical action or omission, and asserts that conduct need not be ongoing or persistent to qualify as sexual harassment.
“Unwelcome conduct” is conduct that is not wanted, or is perceived by the complainant to be demeaning, compromising, embarrassing, threatening or offensive, even where the alleged perpetrator did not intend their conduct to be unwelcome, and impacts or potentially impacts upon the dignity of the victim.
Forms of sexual harassment prohibited by the policy include indecent exposure, unwelcome gestures and displaying sexually explicit pictures, objects, leering and winking, innuendos, suggestions and hints, sexual advances, comments with sexual overtones, sexual related jokes or insults or unwelcome graphics comments about a person’s body made in their presence or directed towards them, unwelcome and inappropriate enquiries about a person’s sex life, and whistling directed at an individual or group of persons.
It includes all unwanted physical contact ranging from touching to sexual assault and rape, and includes fondling breasts, pinching of buttocks, sexual patting, and strip searching by, or in the presence of the opposite sex.
The policy also prohibits conduct involving sexual favours such as persistent pressure for dates and unwanted sexual advances, that make an employment benefit conditional on the sexual favour, and quid pro quo-type suggestions of sex in return for a job, salary increase or unfair disciplinary measure.
It creates an obligation on a judge and magistrate to report any incident of sexual harassment that comes to their knowledge.
However, commenting on the previous draft policy, Ndlebe highlighted the problems with using the current provisions for dealing with sexual harassment.
“Sexual harassment in the courts is an open secret.
“The complaints mechanisms in place are not effective and from our research there is a call for the establishment of an independent body to deal solely with sexual harassment complaints in the courts.
“Judicial officers do not report experienced incidents of sexual harassment because the existing complaints structures are ineffective.”
Ndlebe said reasons for not reporting included that a complaint takes years to be resolved; reporting was seen as career limiting; and those who experienced harassment feared secondary victimization if they reported the incident.
“Lay persons do not report sexual harassment [in the court system] because they do not know where to report and when they do attempt to report, their complaints also take years to be brought to finality.
“Sexual harassment often has an element of a power imbalance. It is often perpetrated by a person who is in a superior position than that of the victim. You will find that perpetrators are advocates attending court, against a cleaner, a magistrate against a security guard or clerk of the court, a judge against a secretary.
“However, this is also not to say that sexual harassment is not perpetrated by judicial officers against other judicial officers – this does happen. Sexual harassment cuts across the board, it just does not discriminate.”
Ndlebe said that a helpline staffed by trained counsellors, for anyone who has experienced sexual harassment in the court system, has yielded 292 calls and text messages in the past 11 months.
While the proposed policy was intended to apply to presiding officers in both the high and lower courts, magistrates were not given an opportunity to comment on it, as it “only went to the heads of courts”.
“Also, the draft policy makes reference to the Labour Relations Act, whereas it applies only to judges and magistrates who do not consider themselves ‘employees’ in the ordinary sense of the word.”
In her unsuccessful February 2022 JSC interview for the chief justice position, Maya said the failure to have a sexual harassment policy for the judiciary was “shocking”, and steps were already in progress to rectify the shortcoming.
She said then: “I learnt this only recently, the judiciary has no anti-sexual harassment policy, as if we come from this bubble, [that] we are not part of society and we don’t experience the same problems experienced by society.”
The imperative for the policy was increased after the complaint of sexual harassment was lodged against Eastern Cape judge president Selby Mbenenge by Makhanda court official Andiswa Mengo in December that year.
But since a first draft was completed in March 2023 and shared with the heads of the various high court divisions and the JSC, it appears to have languished in a filing cabinet, presumably in Zondo’s chambers.
During a September 2023 event in Bhisho celebrating a hundred years of SA women lawyers, Maya said Zondo was considering the draft policy and it would be in place “very soon”.
In an interview with Eyewitness News in July, Zondo said he had asked the committee to deal with “certain issues” in the document and “they took some time before they brought it back to me”.
There has been no word on progress on a second judiciary policy – that a judge facing a charge of gross misconduct such as sexual harassment, may be suspended pending finalisation of the complaint – a proposal confirmed by the JSC in April 2023 as resulting directly from the difficulties in which 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.