The report by a Judicial Conduct Tribunal which found Eastern Cape Judge President Selby Mbenenge not guilty of impeachable conduct will shape how sexual harassment is discussed and understood in months or even years to come. 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. 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. 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”.
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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. 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.
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