A Judicial Conduct Tribunal has cleared Eastern Cape Judge President Selby Mbenenge of impeachable conduct in a sexual harassment case, but legal expert Dr Sheena Swemmer argues the report overlooks key constitutional principles on equality and power imbalances.
The Judicial Conduct Tribunal's report, which found Judge President Selby Mbenenge not guilty of impeachable conduct related to allegations of sexual harassment, has drawn sharp criticism for its handling of neutrality, bias, and power dynamics. Dr Sheena Swemmer, head of gender justice at the Centre for Applied Legal Studies at Wits University, contends that the tribunal's framework fails to align with South African constitutional law, particularly sections 9 and 12, which guarantee equality and freedom from violence.
Swemmer notes that the report emphasizes a strict neutrality, rejecting any presumption of bias due to the complainant's junior position as a black woman relative to Mbenenge's senior role. However, she argues this approach ignores the evidentiary burden shift mandated by equality law. Once a prima facie case of sexual harassment is established—a low threshold—the burden moves to the respondent to disprove it on a balance of probabilities. The tribunal, according to Swemmer, did not apply this mechanism, treating the case as one requiring equal starting points despite historical and structural inequalities.
The critique extends to the tribunal's caution against inferring power imbalances from institutional hierarchies. Swemmer emphasizes that constitutional equality demands consideration of systemic gender-based violence affecting black women, imposing positive obligations on the state to address such harms. By detaching the analysis from these contexts, the report risks perpetuating formal rather than substantive equality.
Swemmer suggests that applying the proper lens could have led to a different reading of the evidence, where unresolved doubts would favor the complainant. The decision, she warns, will influence future discussions on sexual harassment in South Africa for years to come.
