Eastern Cape Judge President Selby Mbenenge. (Photo: Gallo Images / Luba Lesolle) 
The Judicial Conduct Tribunal hearing into allegations of sexual harassment against the Judge President of the Eastern Cape Division of the High Court, Selby Mbenenge, has exposed a set of fault lines in South Africa’s legal culture that go beyond the fate of a single judge.
It has forced into the open the uneasy collision between claims of “African cultural values”, the neutrality of the law and the entrenched persistence of sexual assault myths in our judicial reasoning.
At the centre is a simple but deeply contested question: Can the law ever be neutral when adjudicating sexual violence, or does it inevitably replicate the patriarchal biases of society?
Judge Mbenenge stands accused of sexually harassing Andiswa Mengo, an allegation he denies. His defence has leaned on cultural relativism, a defence that is not new as it is often used to rationalise gender-based violence in Africa.
One of his claims is that his interactions with Mengo were not harassment, but expressions of African cultural courtesies that were misread.
The implication is clear: behaviour that might be interpreted as harassment in one cultural context could be innocuous or even respectful in another.
style="font-weight: 400;">Dr Lisa Vetten made a critical distinction: while persistence may be culturally acceptable in courtship in some cultures, the core issue is whether such behaviour is appropriate in a professional setting, especially where power dynamics can distort consent and erode autonomy.
The cultural argument is not new either. In many contexts, men accused of sexual misconduct have sought refuge in “culture” as an explanatory framework. What makes the case striking, though, is that this defence is being deployed by a sitting judge, someone tasked with embodying the impartiality and universality of the law.
By invoking African cultural practices as a shield, it has raised uncomfortable questions about whether the very institutions that are supposed to guarantee fairness are themselves entangled in, and perpetuate, cultural and patriarchal hierarchies.
The commentary surrounding this assertion at the tribunal echoes familiar patterns in other anti-women’s rights stances within African societies, often masked as cautioning against the perceived maligning of African values in human rights debates.
Critics often contend that dismissing cultural explanations as mere excuses reflects a colonialist disdain for African ways of life. This perspective emphasises that Western human rights values frameworks should not be uncritically imposed on African social practices.
Incomplete framing
But this framing is incomplete when it comes to women’s rights. The issue is not whether African culture deserves respect — of course it does. The issue is whether “culture” should function as a cloak for behaviours that strip women of dignity and agency.
To invoke culture as a defence to sexual harassment risks essentialising African traditions as inherently patriarchal, thereby flattening their richness and undermining the very values of respect, dignity and community that lie at their core.
It further ostracises women who choose to speak out and challenge this behaviour, labelling them as “problematic”, rendering a woman’s entitlement to bodily integrity and autonomy impossible.
The line of questioning directed at Dr Vetten and the social discourse that followed exposed a troubling double standard.
Feminist knowledge that is rooted in decades of research on harassment and rape culture was scrutinised as partial, ideological and culturally biased. In contrast, the judge’s reliance on a cultural defence was treated as legitimate and authoritative.
This creates a hierarchy of knowledge: feminist expertise is treated with suspicion, often perceived to be grounded in emotions/hysterics, while patriarchal cultural claims are dignified and authentic.
This is not neutrality; it is bias masquerading as even-handedness. If the tribunal were truly committed to neutrality, it would interrogate cultural defences with the same rigour it applies to feminist testimony, or dismiss that particular defence entirely.
Instead, it risks entrenching a narrative in which women’s experiences of harm are culturally negotiable, while men’s appeals to tradition are beyond reproach or sacrosanct.
The idea that law is neutral has always been a myth when it comes to issues of gender-based violations. As legal scholar Rorisang Matlala shows in her essay on rape myths, courts routinely reproduce patriarchal stereotypes under the guise of impartial adjudication.
Adjudicators downplay sexual violence by referring to rape as “sexual intercourse”, assume that consent can be implied from silence, or treat marital and intimate-partner rape as less serious than stranger rape. These are not neutral interpretations. They are value-laden choices that privilege male perspectives and minimise women’s suffering.
The Mbenenge tribunal and defence lies dangerously at this intersection. By entertaining the cultural defence, it implicitly validates the notion that harassment is relative, that its meaning depends on the cultural background of the perpetrator rather than the autonomy of the victim. This relativism erodes the universal promise of equality enshrined in the Constitution.
Matlala catalogues a long list of rape myths: that women accept attention even if they did not really want it; that through their behaviour the perpetrator can deduce consent; that a lack of injuries or giving in implies consent; and that consent to one act implies consent to all.
To these and because of this defence we must now add another: that perhaps invoking “culture” can neutralise or excuse sexually harmful behaviour, especially because it has been historically accepted as courting, and endearing for men to do so.
The danger of this particular defence is that it weaponises African identity itself. Instead of affirming African cultures as dynamic, evolving traditions that value dignity and respect, it freezes them into caricatures of patriarchy.
This is not cultural pride, it is cultural manipulation.
The appeal to African culture in this case also raises a critical question as to whose culture must be invoked then? Because surely the judge’s culture is not monolithic? Cultural practices vary across communities, generations and contexts. To claim a singular ethnic perspective on male-female interaction is to erase the diversity of other voices within those cultures.
If men are allowed to deploy culture as a defence against accusations of sexual harassment, they are not protecting culture itself, they are protecting their own patriarchal privilege within it. True cultural defence would require listening to African women, whose understandings of respect, dignity and bodily autonomy are as much a part of African tradition as any male-centric practice.
Selective ‘neutrality’
Similarly, the law’s supposed neutrality is always selective. As Matlala reminds us, courts rarely question the cultural underpinnings of Western norms embedded in legal doctrine. The very idea of individual autonomy and the adversarial trial system are all deemed to be Western imports. Yet they are treated as neutral, universal benchmarks.
By contrast, African cultural claims are cast as special pleadings, deviations from neutrality. In a society struggling with combatting gender-based violence, legal protection and neutrality become a myth for women.
The alternative lies in Matlala’s call for a feminist jurisprudential approach, which recognises that law is shaped by power dynamics and must work to dismantle, rather than reproduce, inequality. If we are to then apply this standard to the Mbenenge tribunal, we can confidently reject cultural relativism as a defence to sexual harassment.
South African law, in its essence and within the Constitution, marries customary and common law into one legal system. This recognition is not a mistake as it recognises the diversity of our ethnic, cultural and traditional differences. But within that recognition, culture can explain a particular nuance, context and reason, but never excuse violations of autonomy.
The Mbenenge tribunal is more than a test of one man’s guilt or innocence. It is a test of whether South Africa’s legal system can move beyond the myths that have long undermined justice for survivors of sexual violence.
By cloaking alleged harassment in the language of culture, it has the potential to expose the fragility of legal neutrality and the persistence of patriarchal privilege. DM
Zekhethelo Cele and Kayan Leung are attorneys with Lawyers for Human Rights.