In an opinion piece published yesterday – on 22 January 2025 – on News24, Dr Mamphela Ramphele attacks a colleague for his line of questioning a complainant in a gross misconduct inquiry into a Judge’s conduct involving alleged indecent behaviour and improper cellphone text message exchanges with a woman staffer in the division of the high court of which the Judge is Judge President.

It is tempting to dismiss Dr Ramphele’s criticism as the usual bluster of a politician who has found an election campaign angle for the 2026 local government elections and beyond. But Dr Ramphele is a respected leader outside the rough and tumble of the cesspool that is politics, and so her criticism commands a measure of respect and must be addressed on its merits.

It is not my place to comment on the merits of the complaint that is currently before the Judicial Conduct Tribunal (JCT) and I expressly decline to do so. It would in any event be inappropriate. I focus only on two aspects of Dr Ramphele’s criticism as these touch on the process of which I am familiar as a legal practitioner.

Dr Ramphele writes:

“The line of questioning by advocate Muzi Sikhakhane suggesting that Andiswa Mengo enjoyed the harassment and played along with it, is testimony to the unreconstructed patriarchal attitudes that assume women are playthings that just need to be coerced into acknowledging their enjoyment of being the centre of attention of men. How appalling.”

She continues:

“It is also this approach by defence lawyers that discourages many women from reporting harassment and abuse for fear of being subjected to ridicule and disrespect as Mengo is experiencing at this Tribunal.”

Then, having appealed to the Chief Justice “as a woman … to intervene and stop this abuse”, Dr Ramphele turns to the Chairman of the panel that is tasked with making a finding on the gross misconduct complaint:

“I appeal to Judge Bernard Ngoepe, the chair of this Judicial Tribunal, to not be a passive bystander in the face of the violation of Mengo. Judge Ngoepe, you are enjoined by our Constitution to protect and preserve the human dignity of Mengo.

Please exercise your duty of care for her as a vulnerable traumatised woman who is being retraumatised. Our country deserves no less to be able to proudly declare that we live by the values of our Constitution.”

These observations or criticisms demonstrate what appears to be a lack of understanding of proceedings before the JCT, the role of the panel on the JCT, and the role of Counsel representing the Judge against whom a complaint has been lodged. Therefore, lest an incorrect impression is created, things need to be placed in a proper perspective – at least to the extent that I appreciate these matters.

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As I understand it, the complaint before the JCT is one of sexual harassment and indecent behaviour as a form of gross misconduct by a Judge. The moral turpitude of the Judge in his relations with a woman staffer in a division of the high court of which he is judicial head is not a factor for the JCT to consider. In other words, the question that the JCT panel has to decide is a legal, not a moral one. The answer to that question will be informed by the facts as understood by the JCT panel from the evidence not only given by, but also extracted from, the complainant, the Judge and other witnesses that each may elect to call.

As I understand the complainant’s evidence thus far, she says the sexual attentions from the Judge towards her were neither invited nor welcome by her. Therefore, the question that the JCT panel must answer is whether the complainant did or did not invite or encourage or welcome the Judge’s sexual overtures. The factual evidence given by and extracted from the complainant, the Judge and other witnesses (if any), as understood by the JCT panel, will be the only key by which the truth can be unlocked.

If there exists admissible evidence that tends to demonstrate a measure of uncoerced acquiescence on the complainant’s part, Counsel for the Judge, who is accused of uninvited and unwelcome sexual overtures towards the complainant, would be failing in his professional duty if he did not bring that evidence to the attention of the JCT panel, including by extracting it from the complainant herself. It is that simple.

A finding of gross misconduct against a Judge has serious consequences for a Judge, including impeachment. Although it is generally assumed (including by the Department of Justice and Constitutional Development) that once impeached, a Judge loses judicial benefits – ie, salary, gratuity, allowances and other benefits provided for in sections 5 and 6 of the Judges’ Remuneration and Conditions of Employment Act, 47 of 2001 to which he would otherwise be entitled on retirement – and there is no provision in any applicable prescript that expressly or impliedly justifies such an assumption, it is nevertheless an assumption that has real practical effects.

So, given these serious consequences of impeachable conduct for an implicated Judge, if there exists evidence – which can be extracted from the complainant herself – which in the view of the JCT panel tends to show that the Judge’s sexual overtures towards the complainant were welcome and/or encouraged by her, and therefore that the Judge cannot be said to have engaged in gross misconduct, there is in my view no logical or lawful basis (moral even) for not following that line of evidence through the complainant.

What’s more, on the scales of evidence, evidence that is damaging to the case of a witness usually carries more weight when that evidence is given by that witness than when it is given by an opposing witness. So, evidence given by or extracted from the complainant that tends to show that the complainant did not only fail to express her disapproval of the Judge’s sexual overtures but also actively welcomed or encouraged them, would ordinarily carry more weight in the assessment of all evidence than if that same evidence were given by the Judge or his witnesses. Ultimately, it is for the JCT to decide whether such evidence exists, whether it is admissible, and what weight to accord it on a conspectus of all evidence that it has heard and seen.

As regards the manner in which Sikhakhane SC has thus far conducted his questioning of the complainant – barring one incident for which he apologised to the complainant – the JCT panel and Chair do not seem to have witnessed any conduct that could reasonably be said to constitute abuse of, or to “retraumatise”, the complainant. Judge Ngoepe is experienced enough in these matters to have raised such objection of his own accord and need not wait for an objection from the evidence leader or the complainant’s legal representatives.

In short, Dr Ramphele’s characterisation of Adv Sikhakhane SC’s line of questioning the complainant as “appalling” and as being “testimony to the unreconstructed patriarchal attitudes that assume women are playthings that just need to be coerced into acknowledging their enjoyment of being the centre of attention of men” is in my view grossly unfair.

I hope Dr Ramphele does not take it as condescending when I say her criticism seems to flow from what appears to be an inadequate grasp of what question the JCT panel is called upon to decide, and what the role of Counsel for the Judge is in that process.

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I have known Adv Sikhakhane SC for many years. We have been on opposite sides of a brief; we have worked together on the same side of a brief; and we have served together in leadership structures at the Pan African Bar Association of South Africa (PABASA). From what I have come to know of him in all these capacities, the man simply does not fit Dr Ramphele’s characterisation of “unreconstructed patriarchal attitudes”.

As the inaugural President of PABASA, Sikhakhane SC has been instrumental in placing Black African women front and centre in the Preamble and Objects of PABASA’s Constitution. For example, it was on his insistence that we have it in PABASA’s Constitution that:

• Membership and leadership of the Bar must as far as reasonably practicable reflect the demographics of South Africa, having regard to historical prejudices against black and female advocates.
• At least 60% of all leadership structures within PABASA must comprise women.

It is also testimony to Sikhakhane SC’s anti-patriarchal attitude and influence that, in the 5 years of PABASA’s operational existence, 2 of the 3 National Chairs that we have had are women. The majority of Chairs in the PABASA constituent branches or chapters around the country are, as far as I’m aware, women. This is not women for women’s sake but also on merit.

It was also on Sikhakhane SC’s nudge that PABASA adopted a policy that at least 60% of our annual pupillage intake at the Pius Langa School of Advocacy must be women. This is intended to swell the number of women advocates and reverse the domination in numbers at the Bar by men.

It is a blessing to us all at PABASA that Sikhakhane SC is for the next 2 years back at the helm as Chair – not because he was keen to get back on the saddle but because many of us did not step forward for election.

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As regards Dr Ramphele’s “appeal” to the Chair of the JCT panel “to not be a passive bystander in the face of the violation of [the complainant]… [and] to protect and preserve the human dignity of [the complainant]”, Dr Ramphele needs reminding that section 10 of the Constitution guarantees the human dignity of “everyone”, not just the complainant in a gross misconduct complaint against a Judge involving alleged sexual harassment. The section reads: “Everyone has inherent dignity and the right to have their dignity respected and protected”. Therefore, the Judge facing a gross misconduct complaint for allegedly engaging in lewd conduct towards a younger woman is also deserving of his human dignity being respected and protected.

Justice Ngoepe has been a Judge for many years, has sat through hundreds of trials in that capacity and has, even after retirement, presided in many tribunal sittings. His experience in running inquiries of this kind is not open to any doubt. For that reason, perhaps Dr Ramphele should be slow to presume to lecture him on how to conduct a hearing. The gender-based pressure that her “appeal” brings to bear on the presiding Judge is inappropriate, even though Judge Ngoepe is experienced enough to know how to deal with it.

While it is understandable – given the notoriety that South Africa seems to have on matters involving gender-based violence – that sentiment would often favour the complainant in cases such as this, this is precisely the factor that calls for caution in a presiding Judge’s handling of the inquiry. Judge Ngoepe and his panel are called upon to adjudicate on a complaint of gross misconduct, not to be partisan towards one of the parties before them.

Perhaps Dr Ramphele is not aware that showing any sign of partisanship, or protectionism towards the complainant when there is no cause for it, could result in a finding of the JCT being successfully reviewed and set aside in the high court. Then, the very “appeal” that Dr Ramphele makes to the JCT Chair will – if heeded – have had an effect quite opposite to that for which she seems to yearn.

I think we would all do well to allow the JCT to conduct this inquiry to finality without putting inappropriate pressure on it to do things in a manner that appeals to our own sensibilities. Expecting the JCT to adopt an assessment of the complaint on the basis of: “If you believe the complainant, you will convict; if you believe the Judge against whom she has complained, you will believe anything” – as Dr Ramphele seems to wish for – is not quite consistent with what one would expect of a proper operation and application of the rule of law in a constitutional democracy – regardless of power dynamics.

We should not pre-judge the complaint by characterising the process and those appointed to make it work as failing to live up to our own partisan standards. Given space and time to do their work without involving them in a tug-of-war, all involved in the process should do their bit, and the panel should come to a just decision – whichever way it goes.

The human dignity of two South Africans is at stake here. Both deserve respect and protection, without Counsel having to catch stray bullets from an unlicensed firearm – as it were.

The End

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