Mbenenge's sexual harassment hearing exposes ripples of discontent in SA's legal profession

Daily Maverick

2 days ago

Behind the scenes, a rift has occurred in the Pan African Bar Association of South Africa (Pabasa), highlighting the notion of the law as 'apolitical' as understood by a crop of younger members.
Last week, the gruelling Judicial Conduct Tribunal investigation into allegations of sexual harassment against Eastern Cape Judge President Selby Mbenenge adjourned to October for argument.
It is then that advocates Muzi Sikhakhane for Mbenenge, and Nasreen Rajab-Budlender for the complainant, court secretary Andiswa Mengo, will argue the case of a lifetime.
The public inquiry, which began in January and is headed by retired judge Bernard Ngoepe, has not only laid bare the intimate and private lives of Mbenenge and his accuser, but also choppy waters in the legal fraternity (for it is a fraternity) itself.
The creaking shifts in the tectonic plates can be traced in the arc of this extraordinary inquiry, which exposed a chasm between old and new, interpretations of language, the law and culture, and the meaning of words themselves.
As the Masimanyane Women's Rights International, the Women's Ikhwelo Network and other women's groups noted in a media statement last week, 'words have power — and consequences.
'We are appalled by the misogynistic and patriarchal statements made by Eastern Cape Judge President Selby Mbenenge during his sexual harassment tribunal.'
The senior judge's 'invocation of so-called 'cultural norms' to justify sexual misconduct is an affront not only to women but to the integrity of the entire South African Constitution and the judiciary,' the statement continued.
Rift in Pabasa
Behind the scenes, a rift has occurred in the Pan African Bar Association of South Africa (Pabasa), highlighting the notion of the law as 'apolitical' as understood by a crop of younger members.
As reported by Franny Rabkin in the Sunday Times, Rajab-Budlender, Mengo's legal representative in the Mbenenge matter and a founder member of Pabasa, resigned from the organisation at the end of May. Nine other members resigned at the same time.
Dali Mpofu is Pabasa secretary, and former Deputy National Director of Public Prosecutions Nomgcobo Jiba (who was struck off the roll in 2016 but restored in 2019), is its deputy chair.
Formed in 2018, Pabasa describes itself as 'unapologetically black and women-oriented'. It is also 'committed to independence, professionalism and excellence in the craft of advocacy and the promotion of race and gender equality'.
Its aim is also to work with other bars and the Legal Practice Council (LPC) to address unemployment among young graduates.
Attacks by Pabasa members on Judge Ratha Mokgoatlheng — who presided over the Senzo Meyiwa trial — and on the LPC had since led to the exodus. Mokgoatlheng made remarks about white lawyers not being late.
Since then, 36 advocates have left Pabasa, including the Arcadia and Loftus advocates' chambers in Pretoria, citing the 'politicisation' of Pabasa as the reason. Rabkin reported that a total of 45 members had resigned from other regions as well.
Sikhakhane, Mbenenge's legal representative, is also a member of Pabasa and was its first chair. His encouragement of women within the organisation is acknowledged.
'Deep concern'
Rise Mzansi leader Songezo Zibi penned a powerful counter to the argument by Mbenenge and his legal team that customary courtship rituals were being rendered 'unconstitutional' by the tribunal.
When renowned gender-based violence expert Lisa Vetten pointed out that power imbalances between men and women existed in all societies, she was undermined as a simpleton who had no understanding of African ways.
Vetten has been attacked by some of Mbenenge's supporters as a 'Western-paid NGO', which is also no doubt part of the Pizza Conspiracy.
Zibi's argument, as a young black African man, as we like to say in South Africa, carries weight, no matter how much some might claim his mind has been 'colonised' or 'whitewashed'.
Zibi, who heads the Scopa committee in Parliament, sets out how power relations play out here and in other government spaces where some are viewed as having authority. The kind of deference he experienced was unsettling, he opined, and it took some time to work through these power relations.
With regard to cultural impulses that cannot be stopped or controlled, he wrote: 'I hope the Judicial Conduct Tribunal … does not buy this nonsense.
'Yet, this is what Judge President Mbenenge implausibly suggested before the tribunal. This laughable proposition, said with much glee, arrogance and a nauseatingly sexist intellectual superiority complex in respect of the (female) evidence leader (and his own counsel), seems to suppose the rest of us live in the world he has created in his head.
'This is the world where the most powerful individual in every high court building in the Eastern Cape is an equal to a junior secretary for the purposes of random sexual advances via text message.'
Zibi also took exception to Mbenenge's insistence on asking for nude photographs even when Mengo had informed him she was not well (as has been testified), and his invocation of culture 'where it is apparently fine for a grey-haired church elder to ask a woman young enough to be his daughter to take off her clothes and send him a revealing picture'. DM