New judiciary sexual harassment policy must be a living document if it is to have impact

South African judiciary’s first sexual harassment policy must be “a living document” if it is to have real impact, says leading gender-based violence expert Dr Lisa Vetten. 

The policy was unveiled on Women’s Day, 9 August, by Chief Justice Mandisa Maya, who hailed it a historic step in safeguarding the integrity of the courts and protecting the dignity of all who serve within them.

The policy was a way of showing that sexual harassment was “something that would now be dealt with formally, carefully and thoughtfully”, Vetten said, which was especially important in light of the current tribunal involving Eastern Cape Judge President Selby Mbenenge.

Vetten recently testified before the Judicial Conduct Tribunal in its investigation into allegations of sexual harassment against Mbenenge. It is the first time a judge has been formally investigated for sexual harassment. 

The case exposed a gap in the judiciary, which until now had no formal mechanism for handling such complaints.

Legal experts have welcomed the move, emphasising that it is long overdue. 

Read more: Mbenenge’s sexual harassment hearing exposes ripples of discontent in SA’s legal profession

Vetten said the judiciary would have to ensure that the policy was implemented: “A policy by itself is not really sufficient. If you don’t make it a living document – implementing, being responsive and dealing effectively with complaints – then you have nothing more than a policy paper.”

She said the new policy clarified the appropriate authority for complaints within the judiciary.

“Often, in courts, issues can become a little blurred because the Department of Justice employs one set of people and the Office of the Chief Justice is responsible for another set of people,” Vetten explained. 

Because the Department of Justice does not employ judicial officers, it would be “difficult in terms of workplace norms” for the department to discipline a judicial officer for sexual harassment, as they do not fall under its responsibility.

“So a policy now means that the Office of the Chief Justice can now take that kind of necessary responsibility and exercise it over the people that they do employ and who they are responsible for,” said Vetten.

Late to the game

Centre for Applied Legal Studies’ Dr Sheena Swemmer said the judiciary was late to the game in terms of having robust policies that address sexual harassment complaints.

“Cases such as Mbenenge’s highlight that we may not simply assume our judicial officers act in ways that are informed by the values and rights of the Constitution, and thus the policy can assist in filling that gap,” she said.

Group One advocate Kameel Premhid said the judiciary’s sexual harassment policy was “especially important in a context like the courts, where there is an asymmetrical power imbalance between, for example, judges and their staff. 

“That it is needed to preempt and prevent potential misconduct within the judicial arm of the state is a different matter altogether,” he said.

Sexual harassment in the legal profession

A report on magistrates’ perception of their work environment released in January 2024 surveyed the views and opinions of 230 magistrates across the country. It found that:

• Almost a quarter of the magistrates had received physical harm or threats relating to their work in the 12 months before the survey; and
• 16% of female magistrates reported that they had been sexually harassed or knew a magistrate who had been sexually harassed, with the most commonly identified perpetrator being another magistrate.

Advancing Women in the Workplace, a report published by the Cyrus R Vance Center for International Justice in 2024, revealed that 31% of female lawyers in South Africa confirmed instances of sexual harassment, with 18% having been propositioned by male lawyers in return for career advancement.

About the policy

According to the judiciary’s new policy, there will be zero tolerance for sexual harassment, with accountability ensured through disciplinary action, a safe workplace and a confidential, fair and retaliation-protected reporting system.

Anonymous reports may be made to the Gender Desk for monitoring, but only formal, non-anonymous complaints under oath will lead to investigations and disciplinary action.

The policy applies to two situations: when a member of the judiciary is accused of sexual harassment; or when they have been subjected to it.

It covers all locations where judicial work is conducted, from courtrooms to professional travel, training, social events and any setting where conduct affects a colleague’s professional life.

“This policy is a necessary and urgent intervention,” said Chief Justice Maya.

“The judiciary cannot dispense justice to society if it does not first ensure it within its own ranks. Sexual harassment is a gross abuse of power, a denial of equality and a stain on the legitimacy of the courts. We are going to tackle it head-on, and this policy will be a useful mechanism in that battle.”

She said it would further entrench a culture of accountability and respect, ensuring that the judiciary remains a beacon of justice for all.

Cases of sexual harassment against judges

In 2016, a woman accused Bloemfontein Chief Magistrate Mziwonke Hinxa of rape in 2010 and 2011, leading to his provisional suspension in 2017.

More recently, Mbenenge faced accusations from Mengo of sending explicit and unwanted WhatsApp messages and making inappropriate advances and comments. The Judicial Conduct Tribunal is still considering the case.

Read more: An alarming 2.7% of female court users report sexual harassment within the justice system

Dimakatso Nchodu, from Judges Matter, told Daily Maverick that the policy aimed to provide a safe environment for women and to streamline reporting and victim support.

“The policy protects victims on two levels – it protects victims physically, mentally and emotionally during and after the reporting stage, and it also provides a deterrence to perpetrators by showing that there is zero tolerance for unwanted advances,” he said.

“The policy also has a detailed explanation of how actions may be perceived in a workplace with power imbalances. Therefore, it not only protects but also ensures that professionalism is upheld.”

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

Mbuyiselo Botha, from the South African Men’s Forum, lauded the new policy, stressing the need for complaint handler training and victim protection.

“I hope that this policy will not just be adopted, but that the Chief Justice will make sure that there is training at all levels, including magistrates, prosecutors, and all others. It should not be a policy that is gathering dust.

“They should understand what someone means when they say they have been sexually harassed… I also hope the policy has mechanisms that protect the whistleblowers and victims so that they feel confident that they can go and report, whether it is a junior or senior judge or a clerk. They [victims] need to feel that they are protected, being listened to, and that they are being taken seriously,” said Botha. DM