The South African legal profession is complex and carries the burden of a patriarchal legacy of racism and gender discrimination. It is particularly Black women who continue to be viewed through a stereotypical lens, with their work historically being undervalued and underpaid. Given South Africa’s colonial and apartheid history, it comes as no surprise that this tenacious legacy remains not only in society but also in the world of work.
The workplace, regardless of the sector, is a microcosm of the biases and stereotypes that exist in broader society. With violence against women being a pandemic in South Africa, data indicates that the prevalence of violence filters into our workspaces. According to the International Bar Association’s research report on bullying and sexual harassment in the legal profession, published in 2019, 43% of women reported being sexually harassed in the legal profession.
Sexual harassment has been recognised as part of the South African legal landscape since the enactment of the Labour Relations Act 66 of 1995. The adoption of the Employment Equity Act 55 of 1998 and the new Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (2019) have further strengthened this framework. These laws and codes recognise the historical and systemic discrimination that women experience in their work environments. Sexual harassment is clearly defined in law. The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace defines it as unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equality in the workplace. Several factors are taken into account, including whether the harassment is based on a prohibited ground such as sex, gender, or sexual orientation, and whether the sexual conduct was unwelcome.
The legal framework also places a clear obligation on employers to ensure that the workplace is free from violence, discrimination, and harassment. There is a well-established body of legal precedents interpreting sexual harassment, identifying its causes and consequences, and outlining the steps employers must take to prevent it.
Despite the development of policy and legislative frameworks identifying sexual harassment as a systemic barrier for women in the workplace, it remains pervasive and hinders women’s ability to advance themselves at work and within the economy of the country. Like all forms of violence and discrimination in our country, sexual harassment requires not only policy but also effective implementation to ensure women can truly flourish in the workplace.
The context of sexual harassment in the legal profession has once again made its way into the spotlight as the Judicial Service Commission conducted interviews for judges across the country. This discourse takes place against the backdrop of the Judicial Service Tribunal convened to address a case of sexual harassment in the Eastern Cape Division of the High Court. The media has also reported various cases of sexual harassment in the magistracy that are under investigation. It was no surprise that workplace safety for women in the legal profession was raised by a female candidate, who spoke of the experiences of sexual harassment faced by women advocates and the steps taken within the Johannesburg Bar to address discrimination against women. Like so many women in the legal profession she had a firm grasp of the important context in which sexual harassment takes place, the legal framework as well as the need for policy frameworks within workplaces that recognises a victim centred approach.
What will come as no surprise to women in the legal profession is that some of the questions posed to the candidate by men on the Judicial Service Commission—some of whom are legal professionals and even acting judges—demonstrated ignorance of sexual harassment, its drivers, and the behaviour that amounts to inappropriate conduct in the workplace. Comments suggesting that cultural differences might be misunderstood as sexual harassment, or that certain customs may be perceived as such, highlight how patriarchy continues to manifest in the workplace and the legal profession.
Chief Justice Zondo importantly cautioned against any view that custom could ever serve as a defence for sexual harassment and discrimination against women. This exchange underscores the need for policies within the profession that recognise women’s vulnerability to abuse and discrimination and the ongoing work required. It also illustrates the importance of conversations within the legal profession to identify and challenge patriarchal and discriminatory views and practices.
This exchange further highlights the barriers women in the profession must overcome when experiencing sexual harassment and seeking to report it. In cases where judicial officers are the perpetrators, no policy exists that judges have adopted and been trained on. There are also no guiding principles for members of the Judicial Service Commission tasked with handling complaints against judges accused of sexual harassment. Women who experience violence may thus face commissioners who believe sexual harassment is a “nuanced” issue with cultural context and meaning that could serve as a valid defence for the perpetrator’s behaviour.
A year after we celebrated 100 years of women in the legal profession, it appears women are still facing the same stereotypes and sexist barriers that existed when they first entered the field. People are products of their beliefs, and they carry those beliefs into their workplaces and positions of power. This is exactly how and why sexual harassment continues to occur with impunity. It also explains why the legal profession remains untransformed when it comes to women, particularly African Black women, and why women who experience violence in the legal profession and within our courts are too afraid to report it. Sexual harassment is not about real power; it is about the exercise of perceived physical, economic, social, and workplace power and control of men over women.
The Women’s Legal Centre has advised and represented many women over the past 25 years who have faced violence and sexual harassment within the workplace, including in the legal profession. Through this work, we have seen firsthand the devastating effects of sexual harassment on women, who suffer deep emotional and psychological trauma, as well as mental health challenges such as anxiety, depression, and post-traumatic stress disorder. In many cases, they are forced to continue working alongside their perpetrators and as a result, exhaust sick and annual leave to avoid them. Some women have had to be relocated for safety or leave their jobs entirely after reporting sexual harassment by powerful men in authority. This has a ripple effect, impacting not only the women themselves but also their families.
Ultimately, this past week illustrates that we need more than just laws to address violence and discrimination against women. We need the will to develop and implement policies and procedures that recognise women’s rights to just and equitable working conditions. Within the legal profession, we require those in positions of accountability to understand and apply the law and policy frameworks without fear or favour. Sexual harassment can be addressed within an accountable system and work environment where there is a commitment to do so. Until this happens, women in the legal profession will continue to fight for substantive equality.
Prepared for the Women’s Legal Centre by:
Charlene May – Acting Director
Chriscentia Blouws – Attorney working in our focus area on women’s rights to just and favourable
working conditions
Andrea Joy Jantjies – Junior Associate in our focus area on women’s rights to be free from violence
Media Contact:
Moenieba Abrahams
Head of Media and Communications
The Women’s Legal Centre
Cell: 082 512 0000