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SEXUAL HARASSMENT AND THE COURTS

Sexual harassment of women in SA legal profession higher than global average, study finds

Sexual harassment of women in SA legal profession higher than global average, study finds
The Makhanda High Court in the Eastern Cape. (Photo: Deon Ferreira)

Last week, the Judicial Conduct Committee recommended that the Judicial Service Commission investigate allegations of sexual harassment laid by a judge’s secretary at the Makhanda High Court against the Judge President of the Eastern Cape, Selby Mbenenge.

In its ruling, the Judicial Conduct Committee (JCC) recommended that the complaint of sexual harassment against Judge President Selby Mbenenge be referred to a Judicial Conduct Tribunal for further investigation, including forensic analysis of both the Judge President’s and the complainant’s cellphones and texts. 

The tribunal will also call witnesses, including cross-examination. 

Complaints that are referred to a tribunal are those which, if proven, would be likely to lead to a gross misconduct finding against the judge and possible removal from office.

It’s still too early to say more about the allegations; that is the work the tribunal must undertake. However, the JCC in its ruling emphasised that these were serious charges.

What is sexual harassment?

The term sexual harassment is generally understood as any unwanted physical advances, verbal comments and non-verbal gestures, of a sexual nature.

The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 also provides a general definition of harassment. 

The act states that “harassment” means unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to sex, gender or sexual orientation.

Sexual harassment appears to be not well understood, and this can result in people downplaying conduct which in fact amounts to sexual harassment. It is often assumed that professional women are somehow exempt from sexual harassment, but this is not the case.

Sexual harassment in the legal profession

In 2014, the Centre for Applied Legal Studies (Cals) published a report titled Transformation of the Legal Profession which looked into the barriers keeping black and/or female lawyers from advancing in the legal profession.

The research was conducted among members of the legal profession, including law graduates, candidate attorneys, attorneys and advocates. 

The study indicated that race, gender and class are factors that lead to discrimination in the legal profession. There also exist barriers that restrict the career advancement of predominantly black female lawyers. One of these barriers is sexual harassment.

In describing its findings on the issue of sexual harassment, Cals noted that “sexual harassment is a problem across the profession, with insufficient structures in place to address it; insufficient understanding of the range of behaviours that constitute sexual harassment; and a lack of understanding of the manner in which it impedes advancement”.

In the research leading to Cals’ findings, some participants “related that there is a range of behaviour that constitutes sexual harassment experienced in the professional environment (in varying degrees of intensity)”.

Cals also found that “senior management at law firms and some members of the Bar Council either do not seem to understand the complexity of sexual harassment, or deny its existence”. 

It was also found that “[t]he lack of understanding, coupled with a fear of being perceived to be disruptive (referred to as a ‘career limiting move’), creates a de facto system in which there is sexual harassment but not consequences for such violations. Because there is little, if any, relief for victims and survivors of sexual harassment… the imperative of silence remains”.

Sexual harassment in the global context 

In 2019, the International Bar Association (IBA) also published a research report into bullying and sexual harassment in the legal profession, titled Us too? Bullying and Sexual Harassment

The IBA describes itself as the world’s leading international organisation of legal practitioners, bar associations, law societies, law firms and in-house legal teams. 

The IBA’s research was conducted with 6,980 respondents from 135 countries and in six languages. The first-of-its-kind research provides quantitative confirmation that bullying and sexual harassment are endemic in the legal profession at a global level, including in South Africa.

The IBA report notes that “[s]exual harassment disproportionately, but not exclusively, affects female members of the profession. It is most prevalent in government legal workplaces and least prevalent in law firms, although it occurs in all workplace types with troubling frequency. 

“Sexual harassment is most commonly perpetrated by a non-supervisor senior colleague and in the physical workplace.” 

It also notes that “[s]exual harassment disproportionately impacts younger members of the profession – one in five respondents younger than 35 had been sexually harassed within the past year. Incidents are very rarely reported and, when they are, workplace responses are typically inadequate, with perpetrators infrequently sanctioned. 

“Sexual harassment is having a considerable negative impact on the legal sector, with many sexually harassed respondents considering leaving their workplaces or the profession altogether.”

In South Africa, 126 legal professionals completed the IBA survey and women accounted for the majority of respondents. 

‘More prevalent in SA’

The survey found that sexual harassment is more prevalent in South Africa than the global average.

In the South African legal profession, 43% of women reported being sexually harassed, as did 12% of men. This misconduct resulted in 25% of sexual harassment targets indicating that the conduct contributed to them leaving or considering leaving their workplace. 

Concerning measures in place to deal with sexual harassment and bullying in the legal profession, the survey found that “[t]he prevalence of policies addressing bullying and sexual harassment in South Africa sits at 48%, below the global average of 53%. 

“Fewer than half of South African respondents expressed confidence in those responsible for handling complaints (42%).”

The overall efficacy in dealing with sexual harassment complaints was perceived as poor, more so because of the lack of training. 

“Only 7% of South African legal professionals had undergone relevant training, below the global average.”

It is in this context that the complaint against Selby Mbenenge, the Judge President of the Eastern Cape – the most senior judicial officer in that province – must be seen. 

From the two studies, it is clear that the problem of sexual harassment can reasonably be said to be prevalent in the legal profession and the judiciary by extension. It particularly harms the career ambitions of women lawyers and judicial officers, who are seen in the lower levels of the profession but are less likely to make it to the top. 

There is yet to be a comprehensive study on sexual harassment in the judiciary, but there’s strong reason to advocate for anti-sexual harassment mechanisms like a comprehensive policy for judicial officers, especially in the context of the power dynamics that are at the root of sexual harassment. 

There may well need to be a comprehensive anti-sexual harassment policy that caters for all court users. As things stand, no such policy exists, nor is there research to inform such a policy. 

Suspension

The JCC ruling in the Mbenenge matter now triggers section 19(4) of the Judicial Service Commission (JSC) Act, which requires the JSC to advise the President of the country on the suspension of the judge president pending the tribunal outcome. 

Again, noting the seriousness of the allegations, the need for the complainant to avoid interactions with the judge president in the workplace and for the judge president to have a chance to properly deal with the allegations, the JSC may well advise the President to suspend the judge.

In describing the characteristics of a legal professional, former American jurist Felix Frankfurter once wrote, “There must be exacted those qualities of truth-speaking, of a high sense of honour, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries, been compendiously described as ‘moral character’.”

Ironically, the legal profession and the judiciary are regularly called upon to advise or rule on issues such as sexual harassment, while studies show that sexual harassment is prevalent in the profession’s own ranks. 

South Africa’s legal profession needs to deal with sexual harassment head-on. DM

Zikhona Ndlebe is a researcher of the Democratic Governance and Rights Unit, an applied research unit in the Public Law Department at the University of Cape Town.

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