- Sexual harassment in South African law is not treated as a single, standalone crime but is regulated across constitutional, workplace, criminal and judicial frameworks depending on context.
- In the workplace, the Employment Equity Act defines sexual harassment as a form of unfair discrimination and places a clear duty on employers to prevent and address it.
- In cases involving judges, the question often turns on whether the conduct amounts to gross misconduct that undermines judicial integrity and public confidence.
South African law does not treat sexual harassment as a single, standalone crime in all circumstances. Instead, it is regulated through multiple legal frameworks depending on context, whether in the workplace, criminal sphere, or judicial ethics.
The Constitution of the Republic of South Africa, 1996, guarantees equality in Section 9, human dignity in Section 10, and freedom and security of the person in Section 12. Sexual harassment is considered a violation of these rights because it strikes at personal dignity, bodily autonomy, and equal treatment.
Employment and workplace law
Under the Employment Equity Act 55 of 1998, sexual harassment is expressly prohibited as a form of unfair discrimination. The Act recognises that sexual harassment can include unwanted sexual attention, coercion, and the creation of a hostile working environment. Employers carry a positive obligation to prevent and address such conduct. Remedies may include internal disciplinary action, referral to the CCMA, and civil damages.
The Code of Good Practice on Sexual Harassment, updated in 2022, provides detailed guidance. It recognises physical, verbal and non-verbal conduct as possible forms of harassment. It emphasises that power imbalance is central, particularly in relationships involving senior and junior staff. Once conduct is unwelcome and persistent, or serious even if it occurs once, it may qualify as sexual harassment.
Criminal law
Certain forms of sexual misconduct may cross into criminal conduct depending on the facts. Sexual assault is criminalised under the Criminal Law Sexual Offences and Related Matters Amendment Act 32 of 2007. In other circumstances, degrading conduct may amount to crimen injuria if it impairs dignity. If pressure is exerted for sexual favours, intimidation, or extortion-type offences may arise.
Sexual harassment on its own is not always a crime, but coercive sexual conduct can be. Judges are regulated by the Judicial Service Commission Act 9 of 1994 and the Judicial Code of Conduct. Oversight is exercised by the Judicial Service Commission.
Possible consequences for judicial misconduct include investigation of complaints, the establishment of a tribunal, suspension, and ultimately removal by Parliament in cases of gross misconduct. The test is generally whether the behaviour is incompatible with judicial office, including abuse of power or sexual harassment.
Applying the law to the case of Judge President Selby Mbenenge
Any legal analysis depends on allegations and not final findings. Public reporting indicates allegations that the judge sent sexual messages or images to a junior court staff member, continued after objections, and that a power imbalance may have existed between a judge and a staff member.
From a workplace sexual harassment perspective, if proven, unwanted sexual communications would constitute classic harassment under the Employment Equity Act. Persistence after objection would be a strong indicator. The existence of a power imbalance would be an aggravating factor. Digital sexual content is recognised as a form of harassment. On these facts, the conduct would likely meet the legal definition of sexual harassment in the workplace.
From a judicial misconduct perspective, the threshold is higher. The central question is whether the conduct undermines judicial integrity. If the allegations are proven, abuse of hierarchical power, inappropriate sexual communications with staff, and damage to public confidence are factors that often support a finding of gross misconduct in judicial discipline. That is why cases of this nature typically proceed to a Judicial Service Commission tribunal.
As for the possible criminal dimension, everything depends on the evidence. If coercion or pressure for sexual favour is established, the matter could fall under sexual offences or extortion-type offences. If the conduct is degrading but not coercive, it is more likely to remain within the disciplinary and civil sphere rather than the criminal sphere. Internationally, most judicial harassment matters are dealt with through disciplinary processes unless clear coercion is present.
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