South Africa

AMABHUNGANE

Judge Maya allegedly repeated sexual harassment allegations about Judge Mlambo before JSC interview

From left: Gauteng Judge President Dunstan Mlambo. (Photo: Felix Dlangamandla / Daily Maverick) | President of Supreme Court of Appeal Mandisa Maya. (Photo: Felix Dlangamandla / Daily Maverick)
By amaBhungane
23 Feb 2022 34

Claims have emerged that Supreme Court of Appeal President Mandisa Maya repeated allegations that her rival for the position of Chief Justice, Gauteng Judge President Dunstan Mlambo, was implicated in sexual harassment.

Two sources have alleged that the Supreme Court of Appeal (SCA) President, Judge Mandisa Maya, personally repeated the allegation that her rival for the position of Chief Justice, Gauteng Judge President Dunstan Mlambo, was implicated in sexual harassment.

The allegations against Mlambo, which have not risen above the level of rumour, burst into the open when Judicial Service Commission (JSC) commissioners Dali Mpofu and Julius Malema raised them during Mlambo’s interview on 3 February.

Maya declined to respond to 14 points put to her by amaBhungane, including a claim that she had “on more than one occasion… conveyed allegations that Judge Mlambo was implicated in sexual harassment to influential colleagues/acquaintances”.

Instead, she wrote, “I have no comment”. 

She copied our questions to the JSC secretariat, SCA Deputy President Xola Petse and acting Chief Justice Raymond Zondo.

During Mlambo’s interview, Mpofu, while acknowledging he was not aware of any formal complaint against the judge, publicly raised what he described as a “whispering campaign” linking Mlambo to sexual harassment, while Malema alleged there were claims that Mlambo had attempted to extract sexual favours in return for appointing women as acting judges. 

Mlambo categorically denied all these claims.

According to Mlambo’s account, the first he heard about these rumours was through a concerned colleague.

“When this Chief Justice nomination process started, I got a call from a retired judge in the Western Cape who said, ‘Hey, I heard a disturbing rumour about you.’ I asked if there was a name. There was not… I feel pained that this rumour found [its] way into my interview… [C]learly its purpose is to poison my candidature.” 

The JSC’s acting chairperson, Petse, later ruled that the sexual harassment rumours should be expunged from the record, given that Mlambo had not been forewarned that such a serious matter would be raised, coupled with the fact that no concrete information about it had been submitted to the commission.

A senior advocate told amaBhungane he viewed the way Mlambo’s interview proceeded as “one of the most savage character assassinations in democratic South Africa’s judicial history”.

The JSC controversially voted to recommend Maya as its preferred candidate to President Cyril Ramaphosa, despite some legal scholars arguing that this went beyond its constitutional mandate. Ramaphosa never asked the JSC to make a recommendation and legal experts including the former Public Protector Professor Thuli Madonsela, and Lawson Naidoo, the executive secretary of the Council for the Advancement of the SA Constitution, have been quoted as saying that the JSC overstepped its constitutional reach in making a recommendation.

The JSC’s recommendation came in the wake of renewed criticism about the manner in which the interviews were conducted, including the fact that the candidates appeared to be treated unequally by the commission.

Ramaphosa has yet to announce his decision. 

New claims

Now claims have emerged that Maya personally mentioned, on separate occasions, similar rumours about Mlambo to two influential persons ahead of the JSC interviews for the position of Chief Justice where she and judges Mlambo, Mbuyiseli Madlanga and Zondo were being interviewed.

Amabhungane has been told of two instances: one case last year before the call for nominations and the second about a month ago.

One of these individuals confirmed directly to us that this occurred and the second individual — whose identity was withheld — confirmed the allegation against Maya via a trusted source. Both parties wanted to stay unidentified for professional reasons.

A mistake?

In the absence of any evidence or formal complaints about sexual harassment against Mlambo, it becomes probable that a source of the rumours may be the distortion of facts around his intervention in about 2019 to assist two female judges in his division who approached him with allegations that they had been sexually harassed, but by another judge.

This matter was mediated by retired Constitutional Court judge Bess Nkabinde at the request of Mlambo.

If Maya had misinterpreted the facts, she may have realised her mistake when Mlambo referred to this incident during his interview and could arguably have stepped forward to disclose her alleged role in repeating the rumours.

This was among the propositions that amaBhungane put to her that she declined to answer.

We also asked why she had allegedly shared these allegations via informal channels despite the fact there are existing formal channels for dealing with allegations about fellow judges, including in relation to sexual harassment.

Nkabinde, who is currently one of the members of the Judicial Conduct Committee (JCC), which is constituted under the JSC to deal with complaints against judges who contravene the Code of Judicial Conduct or any law, confirmed to amaBhungane that, to her knowledge, there are no existing or historical sexual harassment complaints against Mlambo. 

Mlambo revealed at his interview that two female judges approached him alleging that they had been victims of sexual harassment at the hands of another judge. The women did not wish to lay a formal complaint, and they requested Mlambo to facilitate an informal process for them to be heard and the matter resolved through dialogue to the extent that it could be. 

Mlambo approached Nkabinde to assist, which she did. 

Nkabinde told amaBhungane, “[Judge Mlambo] called me, I was in Mafikeng, but I agreed to his request.” 

She said, “I met the two women at their court and they explained their experiences. They did not wish to lay a formal complaint, but they wanted a hearing from a fellow female judge. I engaged in a process with them and the matter was duly settled. [Judge Mlambo] was only involved to the extent that he facilitated setting up the necessary help for the ladies.”

Mpofu, in response to a question asking whether he was aware that Maya had allegedly repeated the rumours to colleagues ahead of the JSC interviews, told amaBhungane: “No. I had no knowledge of this. I am also certain that my own sources of the allegations did not include Justice Maya. I indicated during my questioning [at Mlambo’s JSC interview that] the matter had come up previously and informally in a conversation I had last year with both Judge Mlambo and the current minister of justice from which it became clear that they were both aware of the allegations. You are free to ask both of them. If they deny it, I will reveal the details.”

Aptitude and temperament

The JSC’s controversial recommendation that Maya be appointed as the next Chief Justice has raised eyebrows in both judicial and legal circles. Several jurists raised concerns to amaBhungane during the course of our investigation about her past conduct as a judge.

Our sources, which included several senior judges, raised concerns about the fact that Maya appears to have avoided presiding over politically sensitive cases and has a reputation for either delegating these at the outset or recusing herself at the last minute.

“She wouldn’t be seen on difficult cases,” said a senior jurist who wished to remain anonymous. “You won’t find her on a judgment that is difficult politically.”

She, for example, recused herself from the Al-Bashir immunity case and the John Hlophe case. The latter may well be justifiable, as Maya revealed during her interview that she regarded Hlophe as a “big brother”.

Hlophe is facing impeachment relating to 13-year-old allegations that he attempted to influence two Constitutional Court justices to rule in favour of former president Jacob Zuma

One source, a senior colleague, claimed that during her tenure as SCA President, Maya stopped a long-standing consultative process with senior colleagues with regards to making such decisions as potential acting appointments and the competence of judges.

The source said this meant that many such decisions were made individually, undermining a long-held value system of consultation and collaboration at the SCA — and contributed to a view among colleagues that she was a divisive leader.

This was among the allegations amaBhungane put to Maya, to which she declined to respond. DM

The AmaBhungane Centre for Investigative Journalism is an independent non-profit organisation. We co-publish our investigations, which are free to access, to news sites like Daily Maverick. For more, visit us on www.amaB.org

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All Comments 34

  • This made for uncomfortable reading.
    Maybe Zondo should be chosen – for two years until his age limit kicks in; and start a new process under a new system.

  • Exactly. If these people are sitting in judgment of other people then there must be grounds for a mistrial each and every time they sit. I can’t express how disappointed I am in people that we are supposed to have respect for.

  • A gossiping judge and friend of that idiot Hlophe? That would make her unfit even for her current position at the SCA, not to speak of being CJ.

  • Basically Mlambo needs to go into the SCA and enforce systems procedure and law and order. Sounds like that place is turning into a popularity contest the same as the JSC

  • This is a chilling read. We know from past examples that very public interview processes can still result in the ‘wrong’ people appointed to key roles – our current Public Prosecutor being an excellent example. There was so much public affirmation at the time, and as I recall only the DA asking uncomfortable questions about these ‘gaps’ in her CV.
    Judge Maya has the problem of being the EFF’s choice, and I for one want the Chief Justice to be the one Dali Mpofu does not. Now this, that she too might have thrown shade in Judge Mlambo’s direction, that she’s been threading her away around more political cases, and her closeness to Judge Hlophe. Are we witnessing another RET-sympathetic appointment and just don’t realise it yet? We need relentless digging. And for the cheerleading journalistic corps to stop the fawning.

  • It just get worse – a shameful saga. But I have another question: why is a judge given a pass on sexual harassment? What hope for ordinary women in the workplace when women judges are unable, or unwilling, to make a man take respinsibility for sexual harassment? Why did other judges collude in the silence? And what did he do? say something or do something? If he did it to judges, pity the women clerks and secretaries.

  • Alarm bells are already sounding like sirens! Hlophe her ‘big brother’ and the mere fact that she is accused of bad-mouthing a colleague without proof? Poor Cyril he is damned if he does and damned if he doesn’t.

  • Not a good week for both the NPA and the judiciary. It more and more looks like the NPA will loose its case against Magashule, which will cause mayhem, and an indefinite stop to all State Capture prosecutions. But this story is sickening to the extreme. If true, and I for one will never doubt amaBhungane’s investigations, we are facing the real possibility that the next CJ will be one whom wishes to abstain from any political loaded cases. Which might mean that all State Capture cases will be compromised, and the JCE (with Malema and Mpofu the main drivers) indirectly responsible, simply because they submitted “a preferred candidate”.

    • Coen, I agree about the Magashule case. What mystifies me as a layman as far as the law is concerned is the ease with which the case has been thrown completely off track. We need to try and understand exactly what the Hawks and NPA had been doing prior to the case going to court and in between all the postponements. It just seems that the NPA is either completely unprepared or just doesn’t have the will to pursue this properly.

      • Like most state institutions – the NPA has been and also suffers from dysfunctionalism, which at some stage/period (brief) may not have been case. Paul Hoffman would be able to proffer an enlightening view/opinion on the matter, given that mine is of the ‘common/lay’ variety .

  • Zondo it should be, he has proven himself worthy… And certainly, the JSC should not be allowed anywhere near the next selection for a CJ in their present form, shameful!.

    • Does that not ignore the fact that CR is the ‘biggest’ politician in the country … and relies on his ‘cadres’ (at least those that support him) for retaining that role ? Maybe you (and I) are expecting too much !

  • This article seems in and of itself to be a whispering campaign. No facts and lots of innuendo. I have no iron in the fire for Maya or any judge – i just dont know enough. While i am sure the DM doesn’t have an agenda, it is not clear if the sources have an agenda and, with such a politicized process, they probably do

    Very disappointing report and i just started a monthly contribution to AmaBhungane.

    • Your contribution will be worth your while. AmaBhungane does not make mistakes, or innuendo’s as you call it. Where there is smoke, there is usually a fire!

      • The categorical assertion that it does NOT make ‘mistakes’ may be somewhat extreme … but if they do … it would not be intentional ! The work of investigative journalists is a particularly challenging one (sometimes even life-shortening) … not helped by efforts to probe people with a legal background ! Especially in the hands of those who operate to undermine ‘law or justice’ under the ‘clever/convoluted’ pretext of defending or supporting it.

    • Look at Justice Maya’s record of judgements. Her steering clear of “politically sensitive cases” is factual.
      She was not subjected to the same interrogation that the other candidates were during the interviews. Why?
      She meekly allowed Dali Mpofu to make that stupid, lame sexist joke about his spending all night with her – then he added, as if thrilled with his own juvenile excuse for a sense of humour, “studying”.
      Why did she not express any objection to the way he expressed himself? She seemed so bent on the position that she would allow herself to be treated with disrespect and, in the process & by implication, allow this sort of sexist “joke” to be acceptable in, of all places, the serious context of interviews for the Chief Justice of the ConCourt.
      I was not at all impressed with her interview. Dali’s antics are not surprising, given his poor track record in court, garbled repetitive ramblings often based on perceptions & emotions rather than fact.
      But one expects a potential CJ of the ConCourt to be firm, assertive & fearless & to be ready to call out misogyny, sexism, lewd innuendo and public disrespect for a very serious process in the judiciary. Justice Maya is not that person.

  • Great context story, thanks. The airing of the ‘whispering campaign’ during Mlambo’s interview – and the time the chair allowed it to run – were startling. So to was the JSC’s decision to recommend a single preferred candidate. Zondo sounds like a good interim option, giving time for the dust to settle and someone to do something about pulling the JSC into line

  • This whole process is riddled with hypocrisy, contradiction, questionable relationships, lies and hidden agendas, attributes associated with criminal elements not members of a judiciary.
    The man in charge needs to step up to the plate and clean this mess up. Where are you CR ? Your silence is deafening.
    Let us not overlook forget Mpofu & Malema’s hand in this.
    Zondo for president
    Mlambo for Chief Justice

    • It is going to require the kind of ‘independence’, integrity, quiet tenacity and efficiency … that Thuli displayed … characteristics in very short supply ! Nay … a rarity these days .

  • THANK YOU for one of the most insightful pieces that has been published on the recent JSC interviews. Maybe Maya is a RET sleeper. Where is Commissioner Breytenbach during SCA interviews? What happened to the research capability of the DA?? In comparison, the RET commissioners always come well prepared and get to dominate the agenda during each interview. Their’s is a very narrow focus and the character assassination or fawning agenda could quite easily be be toppled by a more pertinent line of questioning. Maybe Breytenbach should consider getting off her butt and actually prepare for future SCA interviews. Sadly this seems to be our only hope.

  • She was there….not in person, but via zoom. Ask only one question the whole time, to Zondo. That lasted about 30 seconds top! But that was the sole representative of the DA. Its called official opposition. To what I am not sure

  • It certainly, on the face of it, sounds as if appointing Judge Maya as deputy chief justice (in caps), would be a mistake, with possibilities for further disastrous consequences. Moreover Chief Justice Zondo does not need a potential millstone around his neck. His job, restoring full credibility in the judiciary is going to be difficult enough without that.

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