In the last report of the Magistrates Commission to the Parliamentary Portfolio Committee on Justice and Correctional Services, the commission reported on a complaint lodged with the Department of Justice in 2016 by a 42-year-old woman from Botshabelo. 

She alleged she was raped by a magistrate in his flat in Bloemfontein. The complaint was referred to the Magistrates Commission, which investigates complaints against magistrates. The complainant alleged that she had tried to lay a criminal complaint at different police stations, but had not been allowed to do so. 

The commission resolved to conduct a preliminary investigation into the allegations against magistrate Mziwonke Hinxa. Based on the evidence gathered during the preliminary investigation, Hinxa was charged at the end of 2017 with two counts of misconduct. Among other things, the basis of the alleged misconduct was that Hinxa, on two different occasions during 2010 and 2011, unlawfully and wrongfully compelled the complainant without her consent to commit an act of sexual intercourse with him. 

Suspended

On the advice of the commission, on 29 November 2017, the minister of justice provisionally suspended Hinxa from office and this was confirmed by Parliament. Hinxa challenged his provisional suspension in court, but was not successful. 

In 2018, the commission appointed a regional magistrate as the head of the inquiry and two regional magistrates as evidence leaders. The misconduct inquiry commenced on 30 October 2018, two years after the complaint was formally lodged. 

The head of the inquiry found the magistrate guilty and recommended he be removed from office. The ethics committee of the commission was unable to unanimously recommend his removal and was concerned about the merit of the finding. It advised the minister that it could not agree, and he reminded committee members that the decision was theirs. They then agreed that Hinxa should be removed.

The misconduct inquiry has been finalised by the commission and Hinxa has been found guilty of the misconduct he was accused of. It is now up to Parliament whether to initiate the parliamentary part of the process to remove Hinxa from office.  

Criminal charges against the magistrate were withdrawn. 

Alarming figures

In a recent survey conducted by the Democratic Governance and Rights Unit at the University of Cape Town, an alarming 2.7% of female court users reported experiencing sexual harassment within the justice system. Shockingly, 3.4% of women seeking court orders reported sexual harassment. 

Although members of the SA Police Service were identified as being the predominant perpetrators of sexual harassment, members of the judiciary have also been alleged to be perpetrators of sexual harassment and sexual violence. 

The systems designed to address misconduct in the judiciary are not working effectively enough. Sexual harassment complaints need to be dealt with swiftly and sensitively, with a victim-centred approach. An anti-sexual harassment policy that will regulate the conduct of judicial officers, lawyers, prosecutors, court support staff, security guards of the courts and cleaners in the courts has become vital. 

This anti-sexual harassment policy should also regulate how complaints of sexual harassment relating to judicial officers are dealt with in a manner that does not create secondary victimisation. 

While it is commendable that the judiciary has been working on producing a sexual harassment policy (a process that has taken around a year and is still not finalised), a policy is not enough to address the scourge of sexual harassment. 

If we are serious about addressing sexual violence, then we need to approach these matters appropriately. Perhaps it is time to consider a new approach. Perhaps what we need is an external, independent body made up of retired judges and lawyers who have been trained in dealing with cases with a victim-centred approach and who are mandated to clear up complaints within six months. 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.