Mbenenge sexual harassment tribunal: What the report and finding got wrong about neutrality

When I sat down to read the Mbenenge Tribunal report, I did so with a sense of its significance. It is a decision that is likely to be treated as important, but also as contentious, and one that will shape how sexual harassment is discussed and understood in the months or even years to come.

That makes how it is read, and how carefully it is followed, especially important.

What struck at first was not a particular factual finding made by the tribunal. Instead, it was the way the tribunal framed its task from the outset. Before questions of evidence or credibility arise, the report sets out how it understood neutrality, bias and power.

And this framing is significant because it shapes how evidence was approached and what kinds of questions were treated as relevant.

Framework

We are told early in the report which type of framework the tribunal intended to use in deciding the matter.

It explains that there is no presumption of guilt, and that there should be no biased view either for or against the complainant or the respondent simply because “the complainant is a woman in a junior position in relation to a man accused of sexual harassment”.

To do so, the tribunal suggests, would make the outcome predetermined.

I paused at this point, as this framing signalled an approach to neutrality that does not align with South African equality and sexual violence law.

Neither vague nor abstract

The allegations against Judge President Selby Mbenenge concerned acts of unwanted and unwelcome sexual conduct, falling squarely within the legal concept of sexual harassment.

Sexual harassment is not merely a workplace issue confined to labour law. It is a constitutional harm, grounded in section 9’s guarantee of equality and freedom from discrimination and section 12’s protection against all forms of violence.

In the South African Constitution, the right to equality is neither vague nor abstract. It rests on the recognition that certain groups have experienced, and continue to experience, systemic harm.

The Constitutional Court has acknowledged that these groups require more substantive and context-sensitive protection if equality is to be meaningful rather than merely formal.

These include groups defined by race, gender and sex, categories shaped by histories of structural violence that continue in the present.

In the Mbenenge hearing, the complainant falls within a category of persons historically subjected to harm, a black woman. As such, she qualifies for a protective mechanism built into section 9 of the Constitution: a shift in the evidentiary burden.

Burden of proof

This does not mean that the respondent is presumed guilty. It means that the complainant is only required to establish a prima facie (a deliberately low evidentiary threshold) of discrimination based on sex (or gender or race).

Which means that, provided that the complainant provides evidence that suggests, on its face, that sexual harassment may have occurred, then the burden shifts to the respondent. The respondent must then disprove that case on a balance of probabilities.

This burden shift reflects a constitutionally conscious and lawful departure from being strictly neutral.

It recognises that the right to equality requires the law to lean in favour of those who have been historically and presently disadvantaged (in this instance black women) in order to promote true equality of rights for all.

This constitutionally endorsed “bias” (called a legal presumption) was noticeably absent from the tribunal’s report (along with any discussion of the content of the right to equality).

Why does this matter?

Because if the tribunal used the equality framework correctly, then the complainant would need to clear a very low bar of evidence.

She would not have to prove that sexual harassment most likely occurred and instead would only need to show enough to make it a plausible allegation; uncertainty on the respondent’s side would not be enough to dismiss her claim.

In practical terms, this means the respondent cannot simply say it is unclear or he was mistaken in thinking his conduct was welcome.

He must satisfy the tribunal that his version is the more likely account. Where the evidence does not clearly support that conclusion, the law requires the decision-maker to find that the respondent has not met this burden and sexual misconduct most likely occurred.

Equality framework

This equality framework is closely linked to how the tribunal approached questions of power. It cautioned against assuming any imbalance based only on the complainant’s junior position and the respondent’s senior role.

That caution, I suggest, reveals a further difficulty in the framework the tribunal adopted.

Equality law recognises that history does not disappear, and that past and ongoing harm still influences social and institutional relationships. For women, this includes deeply rooted patterns of violence that reach into everyday life.

This is where the right to equality and non-discrimination must be read with the right to be free from all forms of violence. Section 12 does not merely prohibit violence in a narrow sense.

Positive obligations

It imposes positive obligations on the state to design laws, policies and procedures that enable people, particularly women, to live free from all forms of violence.

Once equality law is properly engaged, the tribunal is therefore required to do more than simply avoid bias. It must take account of the historical and ongoing reality that women, and particularly black women, are disproportionately subjected to violence, including gender-based violence.

South African law has long recognised such violence as a systemic form of discrimination on the grounds of sex and gender. Sexualised interactions involving women cannot be assessed as though they occur in a social vacuum, detached from history, power and structure.

Institutional conditions

Against this backdrop, the tribunal’s insistence that no inference should be drawn from the complainant’s junior position and the respondent’s institutional authority reflects a conception of neutrality that the Constitution does not require and, as I believe, it cautions against.

Section 9 does not ask decision-makers to suspend history or ignore structure. On the contrary, it demands that equality be assessed with full regard to the social and institutional conditions in which conduct occurs.

What this means in practice is that the law does not begin by assuming an equal relationship.

It begins by recognising that hierarchy exists, particularly where a senior man holds institutional power over a junior woman. Once the complainant shows enough to suggest sexual harassment may have occurred, the evidentiary burden shifts to the more powerful person to show that this hierarchy did not shape the interaction.

He must put forward evidence demonstrating that his authority played no role, that she was genuinely free to refuse or disengage, and that her responses were not influenced by pressure or dependence. If he cannot do so, the law does not allow the absence of proof to be used in his favour.

Read differently

In the end, our Constitution does not pretend that power, history and inequality disappear in the name of neutrality. It insists that they matter, especially in cases of sexual harm.

Had that lens been applied, the evidence may have been read differently, and doubt may not have carried the same weight.

This does not necessarily mean the outcome would have been different, but it does suggest that the case was based on foundations that the Constitution does not fully support. DM

Dr Sheena Swemmer, head of gender justice, Centre for Applied Legal Studies, Wits.