Author Archive:Abbey Jane Hudson

ByAbbey Jane Hudson

POLITICAL PARTIES DON’T SUSPEND MEMBERS CHARGED WITH SEXUAL OFFENCES – EVEN WHEN CHARGED WITH RAPE AGAINST CHILDREN

#NotOurLeaders
16 Days of Activism to end violence against women

CASE 4: Unnamed ANC Councillor, JS Moroka Municipality
In May of this year an unnamed ANC councillor was accused of raping a 16-year old girl. He was released on bail of R5 000 by the Mdutjana Magistrate’s Court in Siyabuswa, Mpumalanga and the next court date set for 23 June. Rather than suspending the councillor, the ANC in the Nkangala region chose to place him on special leave pending the outcome of the case. Spokesperson Sello Matshoga indicated that the councillor would only have been suspended if the state had succeeded in opposing bail and presented evidence in court of a strong case. No further information about the progress of this case is available.

ANC is inconsistent in its approach
“The ANC is inconsistent in its stance towards members who are accused of sexual offences,” said Lisa Vetten, a gender violence specialist. “On Monday 27 #NotOurLeaders highlighted the case of Winterveldt councillor Sipho Maselane who is appearing in the Ga-Rankuwa magistrates court today (30 November) on multiple counts of rape and robbery. He has neither been suspended, nor placed on ‘special leave.’ We’ve also highlighted how the ANC acted against Marius Fransman even though the criminal investigation had not been concluded,” she said.
Another very recent example is Simon Mofokeng, the mayor of Emfuleni who distributed pictures of a semi-nude 14-year old girl to other ANC leaders via WhatsApp in October of this year. Although Mofokeng has not been formally charged with a criminal offence yet, he was placed on ‘special leave’ on 30 October and an internal investigation launched into the matter. Although Mofokeng resigned on 20 November he is not necessarily off the hook, as the ANC is reported to be still considering further disciplinary action against him.

Reluctance to suspend party members accused of sexual offences is evident across parties
The ANC is not the only party to take the path of least resistance when confronted by party members charged with sexual offences.
“On Tuesday #NotOurLeaders highlighted the case of a deputy mayor, Mncedisi Maphisa, who has been charged with sexual assault. He has not been suspended or placed on special leave by the IFP. In yet another example a DA councillor from Clanwilliam in the Western Cape was accused in March of sexually assaulting a 13-year old girl and arrested. The DA also said they would not suspend him until the criminal case has been concluded. They’ve since been able to duck the issue as the councillor had not paid his membership fees and is therefore no longer a member of the DA,” said Sanja Bornman of Lawyers for Human Rights.

Avoiding internal disciplinary procedures while criminal cases are pending
“Criminal charges are serious. It’s unacceptable that parties claim – and only in some instances – that they must wait for the outcome of a criminal trial before they can act. This is a cop out. They are not powerless to act,” says Vivienne Mentor Lalu of the Women and Democracy Initiative. “Legally, there is no requirement to wait. In fact, political parties (like employers) should run internal processes as soon as they are aware of the allegations against their members regardless of the criminal justice process. That would show that they are serious about addressing sexual violence.” 2

The ANC must act
• The #NotOurLeaders campaign calls on the ANC to provide further information on the progress of the case against the Mpumalanga councillor.
• We also call on the ANC make clear its position on the processes to be followed when a member is accused of a sexual offence. A statement must be issued in this regard and every effort made to ensure that this policy is routinely and consistently applied.
• #NotOurLeaders reiterates its call to immediately suspend Sipho Maselane and undertake an internal disciplinary investigation of his conduct. The national office should also investigate the Tshwane ANC’s handling of Maselane’s matter.

All parties must act
• The #NotOurLeaders campaign challenges all parties to develop procedures for suspending political representatives accused of sexual offences.

For comment contact:
Lisa Vetten, gender violence specialist, 082 822 6725
Vivienne Mentor-Lalu, Women and Democracy Initiative, Dullah Omar Institute, 082 494 0788
Sanja Bornman, Lawyers for Human Rights, 083 522 2933
CRIMINAL CASES AND INTERNAL DISCIPLINARY ACTION
Criminal trials and disciplinary actions are separate processes, with different purposes and levels of proof needed. This is why withdrawal of charges, or an acquittal in a criminal court does not always mean an incident did not happen. It means that the state could not prove beyond a reasonable doubt that it happened. The purpose of an internal disciplinary process, in most cases, is to maintain behavioural standards and create a safe working environment – which employers are required by law to do. The onus of proof is lower in internal disciplinary processes than it is in criminal trials. In these processes the case must be proved on a balance of probabilities – so they look at what is more probable. Internal disciplinary processes can and should run at the same time that a criminal trial is running. They also can and should be run, when the allegations constitute misconduct, even when there is no criminal case.

ByAbbey Jane Hudson

DEMOCRATIC ALLIANCE FAILS TO DEVELOP A SEXUAL HARASSMENT POLICY FOR THEIR PUBLIC REPRESENTATIVES

#NotOurLeaders

16 Days of Activism to end violence against women

CASE 3: DA Chief Whip in the Eastern Cape Legislature – Edmund van Vuuren

In May 2017 a 26-year old worker in the DA offices laid a sexual harassment complaint against  Edmund van Vuuren, the DA’s Chief Whip in the Eastern Cape Legislature. During a telephone call van Vuuren made a number of inappropriate comments to the recently-married woman, including offering to stand in for her husband “if necessary.” In September 2017 the internal commission appointed by the DA to investigate the matter found van Vuuren guilty of sexual harassment and recommended his removal from the position of Chief Whip, as well as termination of his membership of the party – suspended on condition that he committed no similar offences in future. Van Vuuren was not suspended during the course of the investigation and it is unclear if the recommendation that he be removed from the chief whip position has been implemented by the DA. Van Vuuren continues to hold various senior positions in the DA in the Eastern Cape and remains an MPL in the EC Legislature.

The commission tasked with hearing the matter also stated that: “It was clear from the lead evidence that there had been a few incidents of sexual harassment nature (sic) at the offices of the DA Eastern Cape legislature previously. It seems that none of these complaints received due attention and the matter above was seen as the ’last straw’ and that the female staff wanted to ensure that this matter was not swept under the carpet as with previous matters.” There is no indication of any further investigation or action on the other incidents that the commission refers to.

‘Although the DA did institute internal proceedings in this particular instance, to date, the actual impact of that process on Van Vuuren, within the party, and in the EC legislature seems to be zero’. Says Vivienne Mentor-Lalu from the Women and Democracy Initiative at UWC’s Dullah Omar Institute.

Not learning from previous incidents of sexual harassment

“Little wonder that the other complaints went nowhere,” said Lisa Vetten. “The DA has no policy on sexual harassment of their staff by its members, which complicated the commission’s handling of the van Vuuren matter. In the absence of a policy, the commission had to turn to the Labour Relations Act and its Code of Good Practice on the handling of sexual harassment incidents.”

The DA has dragged its feet on finalising the comprehensive policy on sexual harassment. The inadequacy of the DA’s response to the problem of sexual harassment was already made evident in 2015. In June of that year MP Archie Figlan was sanctioned for sexually harassing a DA staffer during a protest prior to President Zuma’s State of the Nation address. While Figlan’s party membership was terminated, like van Vuuren’s, this sanction was suspended on condition that he donate R12 000 to the National Institute for Crime Prevention and Rehabilitation of Offenders (NICRO), as well as perform two hours of community service at NICRO every month for a year. He could not be considered for any positions in the party for five years and also had to write a letter to the complainant requesting her forgiveness. Figlan remains a DA member.

At the time, DA federal executive chairperson James Selfe conceded that the party needed to update its approach to sexual harassment by its public representatives. Some two years later, when the complaint was laid against van Vuuren, they had still not gotten round to doing so.

The DA must act

  • The #NotOurLeaders campaign is calling on the DA to speedily finalise a comprehensive policy addressing sexual harassment by their members. This policy must set out appropriate sanctions for such conduct, including the circumstances under which staff must be suspended.
  • The DA must report on whether or not it followed the recommendations of the commission to undertake further investigation into the offices of the DA Eastern Cape legislature.
  • The DA must explain why Van Vuuren continues to hold senior positions in the ECPL in spite of the findings against him.

For comment contact:

Lisa Vetten, gender violence specialist, 082 822 6725

Vivienne Mentor-Lalu, Women and Democracy Initiative, Dullah Omar Institute, 082 494 0788

MEDIA STORIES RELATED TO THE DA’S LACK OF POLICY

DA ‘sex pest’ faces boot

https://www.news24.com/SouthAfrica/News/DA-MP-found-guilty-of-sexual-harrassment-20150610

ByAbbey Jane Hudson

Inkatha Freedom Party flouts its own constitution by failing to act against member charged with sexual offences

Mcedisi Maphisa, a representative of the IFP and the Deputy Mayor of AbaQulusi has been charged with sexual assault, indecent exposure of genitals and compelling a person to witness masturbation.

CASE 2: INKATHA FREEDOM PARTY (IFP) – MNCEDISI MAPHISA (Deputy Mayor, AbaQulusi, KwaZulu-Natal)

Mcedisi Maphisa, a representative of the IFP and the Deputy Mayor of AbaQulusi has been charged with sexual assault, indecent exposure of genitals and compelling a person to witness masturbation. It is reported that on 12 October 2017 he gave a woman a lift from Ulundi to Vryheid and stopped along the way to demand sex from her. When she refused, he proceeded both to masturbate in front of her and coerce her into touching his penis. Maphisa has been released on bail of R3 000 and will appear again in the Vryheid Magistrate’s court on 17 January 2018.

Inaction by the IFP for IFP member charged with serious sexual offences

Media reports indicate that the IFP will not act on the matter until after the criminal trial. IFP spokesperson Blessed Gwala is on record stating that the party will rely on the legal system to deal with the matter and will allow the law to take its course before embarking on any action. While the IFP Women’s Brigade has noted their ‘grave concern’ over the serious allegations, reports indicate that they too are under the impression that the party is only obliged to act once criminal justice processes have been concluded.

“This is a common and mistaken position to take,” said Sam Waterhouse of the Women and Democracy Initiative. “Legally and morally, parties should proceed with internal disciplinary hearings irrespective of a criminal charge being laid and irrespective of the status or outcome of a criminal case. Our criminal law is probably the highest level of accountability, but it is by no means the only one. Employers and political parties can and must also exact accountability of their staff and members through internal processes.”

Policy gap and failure to implement IFP Constitution

Sexual misconduct is not included among the 20 offences against the party listed in the IFP’s Constitution – although public drunkenness is. “In terms of the way the section on disciplinary rules is currently drafted, the only offence that an harasser can be charged with is bringing the party into disrepute” says gender violence specialist Lisa Vetten.

However, the IFP Constitution clearly requires that any member charged with a criminal act must have their privileges of membership automatically suspended before the matter is dealt with by the National Disciplinary Committee. Sanja Bornman from LHR points out: “There are criminal charges against Maphisa. Why has the IFP leadership chosen to ignore its Constitution on this issue? This suggests that the IFP places a low priority on sexual violence.”

Code of Conduct for municipal councillors does not address sexual harassment

The Code of Conduct for municipal councillors (and deputy mayors) does not specifically list sexual violence as an offence. However, the code can be used to institute internal disciplinary processes against a councillor accused of sexual misconduct through the clause that requires councillors not to act in a manner that compromises the credibility and integrity of a municipality. There is no indication that the municipality or local council intends taking action against Maphisa either.

The IFP and AbaQulusi Municipal Council must act:

  • The IFP must uphold its own Constitution and immediately suspend Maphisa pending internal disciplinary processes.
  • The AbaQulusi Municipal Council must institute disciplinary processes.
  • The failure to specify sexual harassment in the Code of Conduct for local councillors must be addressed.
  • The IFP must develop policy and procedures specific to addressing all forms of sexual harassment and abuse.

For comment contact:

Lisa Vetten, gender violence specialist, 082 822 6725

Sam Waterhouse, Women and Democracy Initiative, Dullah Omar Institute, 084 522 9646

Sanja Bornman, Lawyers for Human Rights, 083 522 2933


MEDIA STORIES RELATED TO MAPHISA’S CASE


IFP Constitution

The IFP Constitution’s section on Disciplinary Procedure Rules identifies 20 offences against the party, which include drunkenness at party meetings and public events, and fraudulent acts. The Rules make no reference to sexual misconduct in any form. The most relevant offence that could be used in such cases is: “acting in a manner likely to bring the name of the Party into disrepute, ridicule and/or contempt.”

Importantly the IFP Constitution states that:

“Any member of the Party charged with a criminal act or accused of fraudulent behaviour or profiteering shall have the privileges of his/her membership automatically suspended until such time as the National Disciplinary Committee has dealt with the matter and laid its recommendations before the National Council.” (Article 27, Chapter 11)

Local Government and Municipal Systems Act, 32 of 2000

The Code of Conduct for municipal councillors does not list sexual harassment or violence as offences, but does state that councillors must act in the best interests of the municipality and in such a way that the credibility and integrity of the municipality are not compromised.


CRIMINAL CASES AND INTERNAL DISCIPLINARY ACTION

Criminal trials and disciplinary actions are separate processes, with different purposes and levels of proof needed. This is why withdrawal of charges, or an acquittal in a criminal court does not always mean an incident did not happen. It means that the state could not prove beyond a reasonable doubt that it happened. The purpose of an internal disciplinary process, in most cases, is to maintain behavioural standards and create a safe working environment – which employers are required by law to do. The onus of proof is lower in internal disciplinary processes than it is in criminal trials, in these processes the case must be proved on a balance of probabilities – so they look at what is more probable. Internal disciplinary processes can and should run at the same time that a criminal trial is running. They also can and should be run, when the allegations constitute misconduct, even when there is no criminal case.


About the #NotOurLeaders campaign

During this year’s 16 Days of Activism, the Women and Democracy Initiative (WDI) of the Dullah Omar Institute at the University of the Western Cape, Lawyers for Human Rights (LHR), and gender violence specialist, Lisa Vetten, turn the spotlight on political representatives accused of sexual violence and the practices that protect and enable their sexual misconduct and abuse. By contrasting the range of incidents reported with parties’ inconsistent – even non-existent – responses, the campaign aims to demonstrate the chasm between political-speak and political actions on sexual violence.

The campaign emphasises the need for strong political leadership by all political parties and representatives in tackling the pervasive problem of sexual violence in South Africa.

ByAbbey Jane Hudson

#NotOurLeaders Campaign launched by Women and Democracy Initiative, Lawyers for Human Rights and gender violence specialist during 16 Days of Activism to end violence against women

Tomorrow, 25 November, marks the start of the annual 16 Days of Activism to End Violence Against Women. Activities led by government emphasise the importance of taking action to end gender-based violence but do political parties walk the talk?

Mduduzi Manana has resigned from his position as the Deputy Minister of Higher Education and Training and been convicted and sentenced for committing assault with intent to cause grievous bodily harm. But he is neither the first nor the only political representative to behave violently towards women. During this year’s 16 Days of Activism, the Women and Democracy Initiative (WDI) of the Dullah Omar Institute at the University of the Western Cape, Lawyers for Human Rights, and gender violence specialist Lisa Vetten turn the spotlight on political representatives and the protectors and keepers who enable their sexual misconduct and abuse. Each day the group will release the name and facts of a different case of a leader embroiled in sexual abuse charges. The aim is to reflect both on the incidents themselves, as well as the responses of the political parties to which these men belong, their actions proving a litmus test of their true commitment to addressing sexual violence.

South Africa’s political representatives are the guardians of the Constitution and rights it contains, including the right to gender equality and the right to be free from all forms of violence, whether from public or private sources. It is their responsibility to develop laws that advance these rights, hold government departments to account for their (in)action in this regard, and approve budgets that make these rights realities. But political representatives’ ability to improve women and men’s lives is compromised when they appoint abusive men to positions of power.

“Political parties that appoint these men, then fail to act against them, or protect them, are hypocritical. Over the next 16 days, we will hear a lot of public condemnation of violence against women and children from various leaders, but this campaign turns the focus on what politicians and parties actually do, not what they say,” said Sanja Bornman of the Lawyers for Human Rights’ Gender Equality programme. Parties undermine efforts to address gendered forms of violence when they fail to develop systems and procedures addressing sexual violence, or fail to put their policies and procedures into effect. They also hamper South Africa’s efforts to meet Goal 5 of the United Nations Sustainable Development Goals. Target 5.5 of this goal is to “ensure women’s full and effective participation and equal opportunities for leadership at all levels of decision-making in political, economic and public life.” Yet women’s political participation and representation is undermined in environments where sexual violence and abuse go unchecked.

Says Lisa Vetten: “These problems are not new and if they are allowed to persist there is a risk they will become permanent features of our political landscape. As the country currently debates the quality of its political representatives this dimension of their conduct should not be overlooked.”

The individuals we will be focusing on are #NotOurLeaders and we demand that political structures act decisively and urgently to tackle the problems we will be highlighting during the 16 Days.

For queries:

Lisa Vetten, gender violence specialist, 082 822 6725

Vivienne Mentor-Lalu, Women and Democracy Initiative, Dullah Omar Institute, 082 494 0788

Sanja Bornman, Lawyers for Human Rights, 083 522 2933