The Judge Mbenenge Inquiry – A Response to Dr Ramphele

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.

***

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.

***

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.

***

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

***

By |2025-01-23T18:10:33+02:00January 23rd, 2025|Blog, General, News|8 Comments

When Race Politics Drives Journalism: A Response to a Takedown

French social psychologist, Gustave Le Bon (1841 – 1931) and American “public relations” theorist, Edward Bernays (1891 – 1995), are generally regarded as propaganda scholars. Their works have been consulted by numerous governments and corporations around the world on how to influence group psychology by manipulating the content of the information that the public consumes. This is a phenomenon colloquially known as propaganda.

In his seminal work, La Psychologie des Foules (1895) – the English translation of which was first published in 1896 under the title, The Crowd: A Study of the Popular Mind – Le Bon wrote about the power to the human psyche of the repetition of an idea or statement. (see The Crowd: A Study of the Popular Mind (Boomer Books, Waking Lion Press, 2006 ed), ch 7: “The Leaders of Crowds and Their Means of Persuasion”, pp 98-99).

Here is some of what he wrote on the power of repetition:

  • “Affirmation, however, has no real influence unless it be constantly repeated, and so far as possible in the same terms . . .”.
  • “The thing affirmed comes by repetition to fix itself in the mind in such a way that it is accepted in the end as a demonstrated truth. . .”
  • “This power [of repetition] is due to the fact that the repeated statement is embedded in the long run in those profound regions of our unconscious selves in which the motives of our actions are forged. At the end of a certain time we have forgotten who is the author of the repeated assertion, and we finish by believing it. . .”.
  • “If we always read in the same papers that A is an arrant scamp and B a most honest man we finish by being convinced that this is the truth, unless, indeed, we are given to reading another paper of the contrary opinion, in which the two qualifications are reversed. . .”.
  •  “When an affirmation has been sufficiently repeated and there is unanimity in this repetition . . . what is called a current of opinion is formed and the powerful mechanism of contagion intervenes. . .”.

It is in this context that I consider the attack by Marianne Thamm, a white woman who writes for the Daily Maverick, on a select group of Black advocates in an article titled The major foes of South Africa’s constitutional democracy star in Busisiwe Mkhwebane’s Fight of a Lifetime.

The piece comes on the back of “evidence” apparently presented by evidence leaders at the parliamentary inquiry into the fitness of the Public Protector to hold office. It is the presentation of that “evidence” for all to see that set in motion a train of events, including publication of this piece, with potentially ruinous consequences for the Black advocates concerned.

This does not appear to be by accident. It is difficult not to conclude that it may be the beginning of the constant repetition of a narrative aimed at “cancelling” the targeted Black advocates. All four Black Senior Counsel are currently leading in various ongoing litigation against government and the white business establishment on behalf of clients who have a right to legal representation in our democracy:

  • Mpofu SC represents the Public Protector in her impeachment inquiry by a parliamentary committee and has successfully challenged her unlawful suspension by the President a day after she announced that she was investigating his “Dollargate” This is the scandal that threatens to derail the President’s bid for a second term as President. Mpofu SC also represents former President Jacob Zuma in his criminal trial by the state, and in the private prosecution of a senior public prosecutor and a self-styled “legal” journalist. He also represented the former President in that unprecedented conviction and sentencing of a private citizen by the apex court.
  • Sikhakhane SC represents Mr Arthur Fraser (former State Security Agency Director-General) who lay criminal charges against the President in relation to his “Dollargate” or PhalaPhala scandal which may possibly scupper his ambition for a second term as President. He also represented former President Zuma at the State Capture Commission and sought recusal of the (now) Chief Justice. Also among his clients is the Sekunjalo Group of Companies in the main proceedings of the Equality Court against the banks and financial industry regulators including the South African Reserve Bank, the Financial Sector Conduct Authority and the Financial Intelligence Centre.
  • Masuku SC also represents former President Zuma in his criminal trial. He also leads a team that is challenging the review of the Mpati Commission of Inquiry on behalf of the Sekunjalo Group of Companies which are being targeted for closure by the banks and mainstream media, like the Daily Maverick, in South Africa. The banks and mainstream media are using the Mpati Report as a basis for targeting the Group. Masuku SC also represents Judge President Hlophe of the Western Cape High Court who has been in the crosshairs of certain persons in the legal profession.
  • Ngalwana SC represents the Sekunjalo Group of Companies against the banks which closed the Group’s bank accounts on the basis, principally, of the Mpati Report. The Equality Court and the Competition Tribunal have ordered the re-opening of these accounts and have interdicted the banks from closing them. Some of the banks are challenging the Competition Tribunal’s decision on review and appeal. Ngalwana is also leading a team that is challenging the State Capture Commission on review. He also leads a team challenging the freezing out of Black companies from state contracts. He has successfully lodged complaints against 2 white judges for gross misconduct and is a vocal opponent of the President’s incumbency for reasons he has articulated on social media.

It would be naïve to exclude this context when considering the Daily Maverick attack on these targeted Black advocates. The only reasonable conclusion would be that the tainting of these targeted Black advocates by constant repetition in the media (by innuendo since there is no evidence of criminality or unprofessional conduct) that we are “beneficiaries” of monies “funnelled” through the office of the Public Protector. That way, it is hoped that our voices will be muted and our professional standing as Officers of the Court is forever compromised. The ripple effect of that is obvious, and that is probably why the names of less senior advocates on brief with us in various matters have also been unfairly published. Either they are also accused of malfeasance or, more likely, the message seems to be a warning to them not to associate with us.

***

Neither the journalist nor the evidence leaders cared to hear the side of the targeted Black advocates on the “facts” before putting out material that suggestive of professional misconduct in the public domain. Neither notice nor hearing was afforded. As it turns out – at least in my case – the alleged “facts” are wrong. The leading evidence leader has admitted as much to me that “the figure was incorrect”, and that she will “correct it”.

But that’s hardly the point. Why was it necessary for the evidence leaders to parade our names (leaving out many others, including white Counsel) in their pursuit of proving the Public Protector unfit to hold office? Why was it necessary for them to do this even without giving us notice? Why couldn’t they verify with us the accuracy of the “facts” on which they rely before going public with such potentially damaging information?

And these are not even allegations or accusation. In my profession, there is a practice known as “self-reporting” if there is an accusation or allegation of unethical conduct, but which has not been formally reported to the Bar Council, or if Counsel suspects there may be something possibly amiss in his or her own conduct that may require the attention of the professional committee. The expectation is that Counsel knows (or should reasonably know) when a matter of his or her own conduct requires the attention of the Bar Council. One need not first be reported.

So, with that in mind, I asked the evidence leader directly:

“Are you accusing me of anything? If so, of what exactly? I ask so that I can decide how to approach what you did this past week.”

Her answer was an emphatic: “No I am not accusing u of anything”.

Then she apologised and said she will do it openly during the parliamentary committee sitting. I look forward to learning of the precise content of the apology.

As part of proving their case that Adv Mkhwebane is not fit to hold office, the evidence leaders (both advocates) had it in their heads that it would be a good idea to expose for public consumption the fees that a select number of Black Counsel had earned from rendering legal services to the Public Protector on instruction from various attorneys (8 in my case) to the glaringly obvious lack of attention on white counsel, white law firms and other black counsel who, it seems in their view, do not fit the narrative they seem intent on putting forth. Did they do this deliberately? The lack of focus on white counsel and white firms makes the attention on targeted Black Counsel a racially slanted exercise.

Anyway, I digress. My purpose here is not to engage with the unpardonably louche conduct of the evidence leaders. I have started a process of dealing with that elsewhere. My focus is the Daily Maverick takedown of specifically targeted Black advocates for doing what advocates in the referral profession do: render legal services to a client through an instructing attorney on fees agreed in advance with the instructing attorney.

That the targeted Black advocates should earn a fee, over a period [4 years and 5 months in my case], from rendering legal services to an institution that is funded by government (ultimately taxpayers) seems to stretch the bounds of credulity for this white journalist. Her interest seems to have been triggered by the amounts the targeted Black advocates are alleged to have earned: “millions of rand”, she pronounces with apparent disgust. One could only imagine what her reaction would be if she were to hear the amounts the white advocates earned.

Labelling these targeted Black advocates variously as “those who are opposed to accountable government”, “a cluster of well-known professionals” and “an A-list of high-powered beneficiaries”, she spares hardly an adjective or verb that is suggestive of criminality. For example, according to her, these targeted Black advocates did not earn their fees from rendering legal services. Instead, they “benefitted handsomely” from the litigation “funnelled through” the Public Protector’s office.

By innuendo, these carefully chosen words are intended to suggest malfeasance or corruption or worse. But on what evidence? Did she even bother to ask the targeted Black advocates she so callously defames? Of course not. That would spoil her broth.

Notice the careful choice of the verb “funnelled”. It seems intended to create the impression that these are monies diverted from elsewhere. Why? Well, because these Black advocates “lost all these cases” – a lie of course, but why would she let facts get in the way of a good yarn?

Quite apart from the fact-free merits of the publication, let us consider the journalistic value of the article.

***

The Daily Maverick article is a wide-ranging piece of work, although labelling it as “work” is rather charitable. The piece lurches imperceptibly from partisan political commentary to didactic UNreasoning to what inevitably comes across as a white superiority sermon. As a journalistic piece it is incoherent, a language understood only by fellow travellers. As a propaganda tool it is blunt and unlikely to persuade a discerning reader.

It is difficult to understand how this piece made it past the sub-editor’s desk, let alone being published. Surely the editor could discern the significant reputational risk to the media house? Perhaps not? Perhaps this is the sort of unbridled attack on Blackness that we should come to expect from the publication?

The measure of a good script is usually a coherent plot. That normally comprises a clear thesis, focused and unwavering reasoning aimed at proving the thesis, and a conclusion that brings everything to a logical end.

Writers are often encouraged to flesh out the plot with colourful characters and vivid settings that will enhance the story and grab the reader’s attention. The journalist does this with aplomb. Characters like Adolf Hitler feature prominently alongside Black advocates. The imagery is disturbing. But that is the point: to shock and awe and, ultimately, cancel the targeted Black advocates by resorting to thoroughly disreputable imagery.

In a work of fiction, this is well and good. But playing Russian roulette with people’s professional careers that could trigger all forms of potentially ruinous consequences is just mean-spirited. Already, there are people who believe – simply on the basis of innuendo – that these targeted Black advocates “looted” the public purse.

But even in a work of fiction – which this article largely is – staying focused on the thesis is key. Nothing is worse than a good plot idea that grows ever more chaotic as the story develops. But Daily Maverick‘s Marrianne Thamm – who has apparently written books – appears to have suspended this rudimentary literary exploit as she lurches directionless from one chaotic sub-plot to the next in quick succession.

For example, what has Ngalwana’s representation of Dr Iqbal SURVÉ to do with Adv Mkhwebane’s fitness for office? Ah! Rogue by association. That’s it. If Ngalwana represented Mkhwebane and now represents Dr Iqbal SURVÉ, then abracadabra, Ngalwana must be a rogue. “Dots have joined …”, she claims triumphantly. Such is the didactic UNreasoning of the piece.

Stumbling from, at once, excoriating and praising politicians (Malema, Sisulu, Zuma – even Pallo Jordan is dusted off from politico-academic oblivion in order to make a desperate point about the Freedom Charter somehow, conveniently, birthing the Constitution) to judges (Hlophe and Sachs) to lawyers (Mpofu, Sikhakhane, Ngalwana, Xulu, Masuku, Seanego – ignorantly making no distinction between attorneys’ and advocates’ roles, if she even understands the distinction) the piece meanders haplessly into a lump of shapeless bile – which in itself inadvertently paints the writer as a foe of democracy.

So, what next? Does one sue for defamation? Perhaps. But the damage is done. No amount of court-awarded damages will undo it. The writer and her lawyers know this. To her and her bosses R500,000 is a small price to pay for the damage they wanted so desperately to inflict on those they consider out of step with their view of the world they still want maintained for posterity. An apology? A retraction? From a media house? What good will that do in a scandal-enthused public?

What about defamation against evidence leaders? Does parliamentary privilege shield them in this case? Is that why they felt no compunction in doing what they did? I find it difficult to believe that a member of the Bar (as I know it) would deliberately seek to malign colleagues in this fashion. At least that is the member of the Bar in me. I suppose time and further developments will prove what the correct position is. But can the same be said of a journalist?

One thing is clear, though. The hard work of freeing South Africa from the shackles of totalitarianism of all sorts continues.

By |2025-01-15T10:12:34+02:00November 9th, 2022|Blog, General, News|1 Comment
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