Chief Justice Raymond Zondo. (Judge is important)
Chief Justice Raymond Zondo has been asked to clarify and consider the impact of the Judiciary Commission's (JSC) decision not to recommend the suspension of an Eastern Cape judge over sexual harassment charges.
The decision comes on top of police confirmation that Judge Selby Mbenenge had brought serious criminal charges against the accuser a year after the complaint was filed, warning that the public's confidence in the judiciary is at risk. caused.
One of these came from civil society judicial watchdog Judges Matter, which warned that the JSC was also putting its own credibility at risk.
The JSC said it did not ask President Cyril Ramaphosa to suspend Mbenenge pending the findings of the Judicial Conduct Tribunal because he was already on special leave.
However, Judge Matter and colleagues noted that the commission had recently recommended suspensions for at least five judges, even though they were also on special leave.
“The JSC appears to be giving him special and more favorable treatment. This risks undermining the investigation and the JSC's findings,” said Judges Matter, based in the Department of Democratic Governance and Rights at the University of Cape Town's Faculty of Law. said.
He then wrote to Mr Zondo on Tuesday asking when Mr Mbenenge applied for special leave, when it was approved, when it began and whether there were any conditions attached.
“Would other judges facing allegations of judicial misconduct have been similarly granted special leave instead of suspension?” it asked.
Judge Matter said that while he did not foresee interference with witnesses in this case, he was “concerned that there is little guarantee that such interference will not occur, short of suspension.”
Noting Mbenenge's decision to prosecute Andiswa Mengo, an aspiring lawyer who accused him of harassment, the JSC asked whether it had considered the risk of witness interference and whether such a thing would occur. I asked him if he had asked for that guarantee.
“Judges Matter is extremely concerned about the negative message that the JSC's decision and its contradictions send to the public, particularly victims of gender-based violence,” it concluded.
“We therefore seek clarity on whether the JSC has considered the broader implications of its decision. If so, what steps has the JSC taken to mitigate the impact on the judiciary? ?”
Mr Zondo's office acknowledged receipt of the letter.
Mr Mbenenge was placed on special leave a year ago after it emerged that Mr Mengo, then a law clerk in Makanda district, had accused him of sexual harassment, prompting Mr Zondo to invite him.
In a statement last week, the JSC said: “The reason for the JSC’s decision is that Chief Justice Mbenenge is on special leave pending the outcome of the tribunal and all matters partially heard during this period need to be finalized. This is because there is.”
Sources close to the Feb. 2 decision by the so-called “small JSC” to exclude parliamentarians said it was neither an easy nor obvious decision, and one that ignored precedent.
Since the JSC law was revised in 2010, it has been the practice to suspend judges pending the outcome of a court investigation into allegations of serious misconduct. Everyone to whom this applied was required to complete work on the issues they were hearing at the time.
Judges John Hlophe, Nana Tintswalo Makhubele, Mushtaq Parker, Chiphiwa Maumela and Nomonde Mngkibisa-Tusi are currently suspended for misconduct.
Maumela, Mgukibisa-Tusi and Parker were suspended even though they were on special leave for medical reasons at the time.
A well-placed source said the decision to waive Mbenenge's suspension was made even more troubling given his decision to file criminal charges against Mengo.
“This sends a message to women who have made sexual harassment accusations against powerful men that their voices will not be heard and taken seriously. It becomes a matter of hypocrisy.”
It is certainly understood that Mr Mbenenge's strong reputation as the presiding judge of a large division was one of the factors weighing on the commissioner when making this decision. Equally irrelevant considerations about his respect in the community and church were also raised by commissioners.
JSC spokesperson Mvuzo Notiesi said the commissioners were not aware of the fact that Mr Mbenenge had filed a counterclaim at the time they made their decision, but that was not a factor to consider. “In any case, the criminal case is a separate and legitimate legal process by other agencies of the state. It does not affect his JSC consideration.”
Notiesi's colleague, JSC spokesperson Ceci Baloyi, who is acting as a judge this month, could not be reached for comment.
However, questions have been raised as to whether it was appropriate for Mr Notiesi to speak on the matter, given his long professional relationship with Mr Mbenenge as a lawyer.
He instructed Mbenenge in a number of cases, the latter being perhaps the most senior advocate in the Mtata court, one of which was Matiwane v. President of the Republic of South Africa et al.
Police confirmed this week that Mbenenge had lodged an assault case with East London police in December and was transferred to Pretoria soon after.
“This incident is currently being investigated by a team from the SAPS Anti-Corruption Unit,” Brigadier General Atlenda Mate told the Mail & Guardian.
He said the charges “relate to a series of explicit WhatsApp messages that Ms Mengo allegedly posted on social media, which she claims were sent to her by Judge Mbenenge.” said.
Mengo's complaint to the police comes a year after Mr Mengo, who was a clerk to Justice Avinash Govinji of the Makanda High Court, filed a complaint of sexual harassment which was subsequently referred to the Judicial Conduct Commission (JCC).
She was then transferred to the Solicitor General's Office in the National Office of the Chief Justice's Office in the Midlands.
It is certainly understood that when the JCC considered the complaint, it did not question the authenticity of the messages Mbenenge allegedly sent to Mengo.
The JSC decided in December that Mr Mbenenge should be brought to court, but no date has been set for starting proceedings.
After the charges against the judge became public, Judges Matter called for the judge's resignation pending resolution of the charges.
It also reiterated its call for the judiciary to adopt a formal policy on dealing with sexual harassment.
This issue was raised two years ago during an interview with four presiding judge candidates, including members of the JSC. Mr Zondo, who was deputy chief justice at the time, admitted in an interview that no such policy existed. Mr Zondo announced in February last year that a committee under Deputy Chief Justice Mandisa Maya had been set up to draft an anti-sexual harassment policy for the judiciary. “So there's some work to do going forward. It didn't happen as quickly as I expected,” he admitted.