Selby Mbenenge, SC, for Constitutional Court judges Chris Jafta and Bess Nkabinde is seen at a tribunal hearing into a misconduct complaint against Western Cape Judge President John Hlophe in Johannesburg on Tuesday, 8 October 2013. Picture: Werner Beukes/SAPA
A complaint of sexual harassment against Eastern Cape High Court Judge President Selby Mbenenge is expected to kick off today when the Judicial Conduct Tribunal is to hear evidence from a secretary who works for another judge in that division and laid the complaint against Judge Mbenenge.
Retired Gauteng Judge President Bernard Ngoepe, who will lead the tribunal as its president during these proceedings, however ruled that parts of the hearing will take place behind closed doors.
The complainant, Andiswa Mengo, and the SABC had made submissions that the hearing should be held open to the public.
Judge Ngoepe, however, ruled that it is in the interest of justice that parts of the hearing and evidence presented should remain under wraps.
Both the complainant and the SABC largely base their argument on the importance of a public hearing and that the matter is of public interest.
Judge Ngoepe commented that “from the outset, it should be stated that we all acknowledge the importance of holding hearings in public generally; nobody needs a lecture on that.”
He, however, added that even in criminal cases, there are instances where the public would not be allowed in, for good reasons.
“Nobody should therefore parade themselves as being better champions of open hearings than those who hold a contrary view in a particular case. Holding a contrary view in a particular case does not therefore necessarily cast one as being inimical to the idea of a public hearing or lacks appreciation of the importance thereof,” he said.
Judge Ngoepe said that the Judicial Service Commission Act provides for a default in camera position but that as leader of the tribunal, he has the discretion to rule whether the hearing should be open or not.
The complainant, in asking for the proceedings to be open, raised the “scourge of abuse or sexual harassment of women (at work)”.
But Judge Ngoepe said no explanation is given on how the fight against this would be undermined by an in camera hearing.
He added that the argument by the complainant ventures into the realm of conjecture and also comes very close to attempting to ride on the back of the scourge of violence against women - a very emotive issue.
“The purpose of these proceedings is not to fight other battles; they are tailor-made to deal with complaints against, specifically, judges.”
Judge Mbenenge, meanwhile, opposed a public hearing and argued that some of the allegations against him “have the potential to cause untold irreparable reputational damage, were they not to be sustained in the final analysis and the proceedings end up being accessed by the public and the media.”
He made it clear that he is denying all the allegations against him.
Regarding the live broadcast of the proceedings, Judge Mbenenge said this and untested evidence has the potential to cause prejudice and irreparable harm to him and the administration of justice.
Judge Ngoepe responded that looking at the nature of the allegations, there is merit in Judge Mbenenge’s concern.
While he concentrated on possible reputational damage to himself, Judge Ngoepe concentrated on the possible damage to the judiciary if everything were to be aired in open court. Judge Ngoepe said this is because Judge Mbenenge is not just a member of the judiciary but one of its leaders.
“Damage to him would therefore extend to the judiciary. The very purpose of the prosecution of complaints against judges in proceedings of this nature is to protect the image of the judiciary as an institution.”
Judge Ngoepe quoted from submissions made on behalf of the complainant, in which she said: “This matter is an opportunity for other women to finally speak out and come forward with their experiences of sexual harassment in the legal profession. We therefore ask that the Tribunal committee to consider this request in light of the national context and pervasive statistics of sexual violence against women in South Africa and the need for women to speak out against such abuse.”
She also quoted statistics to prove her point.
Judge Ngoepe said in his view, there are appropriate fora to deal with such alarming statistics; not these proceedings. “We must be careful not to, as it is sometimes colloquially expressed, “weaponize” these proceedings to fight other battles; doing so may lead me to stray away from the true purpose of these proceedings…”
He also noted that Judge Mbenenge has been placed on special leave; which is a clear message that the complaint is taken seriously.
“Damaging the image of the judiciary can certainly not be in the public interest. The conclusion I come to is a hybrid proceeding - partially public and partially in camera,” he concluded.
Judge Mbenenge is facing the tribunal after the complainant claimed she was sexually harassed by him in 2021 and 2022.
Cape Times