NICOLE FRITZ: Judiciary fails to get it right over issues of sexual harassment

Those of us in civil society who understand our mandate to include upholding the rule of law and protecting the independence of the judiciary are typically good little soldiers in that fight.

We understand the judiciary has been subjected to unprecedented attack and vilification by irresponsible political actors; we know even in “normal’ times judges speak largely through their rulings and are constrained in their response to political attack; we know their authority is conditioned largely through the respect and esteem they command, and not through the control of budgets or armies; and we know many of our judges have been exemplary, heroic even, in meeting the demands of their office.

We also know that the beleaguered SA psyche probably does not want to have to confront the fact that the branch of government largely credited with saving us from state capture is flimsy: if it is the glass barrier holding us from the abyss, it is so fissured that one inadvertent knock may send it all cascading down.

Yet this of all weeks is not one in which to pretend all is well with our judiciary. On Tuesday a judicial conduct tribunal (JCT) started its hearing of complaints against Gauteng high court judge Tintswalo Makhubele. She faces charges that, if established, will constitute gross judicial misconduct: that she occupied the post of chair of the Passenger Rail Agency SA (Prasa) in contravention of her simultaneous appointment as a high court judge, and that as Prasa chair she facilitated corrupt dealings.

Then there are reports that a Free State high court judge is to appear in court for allegedly misappropriating Road Accident Fund compensation intended for a six-year-old child. Perhaps more disturbing still is the disclosure that Eastern Cape judge president Selby Mbenenge is the subject of a judicial conduct committee investigation into a complaint of sexual harassment of a judge’s clerk.

As reported, the events that led to this referral and the implication of several office of the chief justice (OCJ) officials and other judges are alarming. It was reportedly determined by OCJ officials in the Eastern Cape that, as a first response, mediation should be attempted between the complainant and Mbenenge, at which three other judges would serve as witnesses. This indicates a frankly frightening inability to appreciate the gravity of sexual harassment complaints and the extent to which power differentials both enable harassment and silence complaint.

The complainant has reportedly had to flee the Eastern Cape in the face of threats to her life. The organisation Judges Matter has rightly called for Mbenenge to step down until the matter is resolved. But the matter bears wider investigation, impugning as it does — if accounts are correct — several officials at the OCJ and other judges of the Eastern Cape high court.

On this score, it is worth noting that giving evidence before yesterday’s JCT hearing of the complaints against Makhubele was Gauteng judge president Dunstan Mlambo. Just more than a year ago Mlambo was subjected to a sustained ambush at the Judicial Service Commission interviews of candidates for chief justice, getting accused — without corroborating evidence of any kind — of sexual harassment.

In the year since that degrading spectacle there has been, to my knowledge, not even the most perfunctory attempt to substantiate those allegations. More profoundly, there has apparently been no effort to exonerate Mlambo, and so he must adjudicate and give leadership under the shadow of that smear.

As is true of every evidence-based system, proving a negative is well nigh impossible. But if sexual harassment is truly a concern for our judiciary and the OCJ, as it must be, you might expect at least a statement recording a diligent investigation and explanation that while any attempt to corroborate the accusations loudly amplified at the JSC would have been treated with utmost seriousness, there have been none.

In the absence of such attempts we are left to conclude that accusations of sexual harassment do not weigh with gravity on our judiciary — that they are simply political football.

• Fritz, a public interest lawyer, is director of the Helen Suzman Foundation.