ANC appointment sends message condoning sexual harassment

The African National Congress (ANC) Limpopo secretary Cassell Mathale and I were guests on the show. You might well wonder what could have elicited such a response.

 

We were discussing the appointment of Norman Mashabane, former South African Ambassador to Indonesia, as a member of the Limpopo provincial legislature, following Rob Tooley’s move to head of the provincial treasury.

 

In 2001, the Department of Foreign Affairs found Mashabane guilty of 21 charges of sexual harassment. Foreign Affairs Minister, Nkosazana Dlamini Zuma reinstated him pending the outcome of an appeal. In June 2003, Lara Swart, who worked at the South African Embassy in Indonesia, laid new charges of sexual harassment against the Mashabane.

 

An internal disciplinary hearing found him guilty. Dlamini Zuma overturned this verdict on appeal too. Swart took the matter to the Pretoria High Court who, on 1 December 2006, found Mashabane guilty of sexual harassment.

 

In presenting the position of the ANC Limpopo, Mathale said that Mashabane was not convicted of a criminal offence and was still engaged in procedures to clear his name, though did not elaborate on what these procedures were.

 

Constitutionally, Mashabane is still able to serve in public office, as he does not have a criminal record. He further emphasised that it was Mashabane’s democratic right to be appointed to any position.

 

Mashabane has a proven track record of sexual harassment. Do we not hold those in public office up to a higher standard?

 

This speaks to his inability to exercise good judgement, a lack of respect for women and a questionable commitment to ANC’s vision for gender equality. These are not desirable qualities in a leader.

 

This also raises important issues about how we currently deal with sexual harassment- a fireable offence, mostly handled in the workplace. What legal standing does a decision taken by an internal disciplinary hearing have?

 

The Employment Act of 1998 and the ‘Code of Good Practice on the handling of Sexual Harassment in the Workplace’, amended in August 2005, legislate responses to sexual harassment stipulating that the employer should “take the necessary steps to address the complainant in accordance with this code and the employer’s policy.”

 

The procedures followed in any sexual harassment case derive from an Act of Parliament and therefore should enjoy some respect as a legal process.

 

While the amended code does not refer to criminal and civil procedures available to the complainant, the 1998 Code clearly states that “a victim of sexual assault has the right to press separate criminal and/or civil charges against an alleged perpetrator, and the legal rights of the victim are in no way limited by this code.”

 

The challenge in this regard is the existing body of rules of evidence. Evidentiary rules require that there are eye witnesses and corroboration. By its very nature sexual harassment happens in private. So how does one capture evidence? This needs serious consideration.  

 

Sexual harassment is a crime and perpetrators need to be charged and sentenced accordingly. In addition to the internal disciplinary hearing, taking the Mashabane case to a criminal court would certainly have clarified any doubts in regarding the legal standing.

 

In the broader context, levels of gender violence in South Africa are incredibly high. What message does the appointment of Mashabane to a position where he will wield a degree of political power and exercise leadership send to the public? Indeed what about the women who Mashabane harassed?

 

People who have experienced gender violence are often reluctant to report these crimes for fear of victimisation. The appointment of Mashabane shows a lack of respect for the complainants’ experiences, and their courage in taking up the matter.

 

The ANC Limpopo’s position is confusing and in many respects contradictory. The ANC dismissed former chief whip Mbulelo Goniwe for sexual harassment. In that case, the ANC acted decisively and lived out their commitment to women’s rights by supporting Goniwe’s dismissal. The Mashabane decision raises some concern about how the ANC sanctioned the decision.

 

The talk show presenter asked whether someone found guilty of sexual harassment and dismissed from their position should pay for that forever. This is a difficult question.

 

Dealing with sexual harassment in the workplace and not within the formal legal system, results in a great deal of confusion.  How can the formal justice system become more accessible to complainants of sexual harassment?

 

What is the legal standing of decisions taken by an internal disciplinary hearing dealing with sexual harassment? The Departments of Labour and Justice, unions and civil society organisations need to address theses issues as a matter of urgency.

 

It is important to note that Mashabane has not taken on a position in the private sector, but an appointment public office. Citizens of South Africa deserve leaders with integrity, good judgment and respect for all people, including women.

 

One of the hosts concluded the talk show by saying that he had never walked so far and come back to exactly where he had started. I shared that sentiment.  

 

As the show ended, I felt a sense of frustration and deep concern by the lack of engagement with bigger issues at stake, not just the legalities. South Africa must become a country where terms such as ‘suicide bombers’ and ‘Delilahs’ are not used in reference to women, just because they exercise their right to safe spaces to live, work and participate as citizens.