Report for EE From Rashida Manjoo 10 Dec 2018 FINAL

Report for Equal Education

Author: Rashida Manjoo1 (Isaacs Inquiry Panel Member) 10 December 2018

1. Introduction 1.1 The independent report This report is not a response to the report released by Judge Satchwell and Dr Langa on 27  November 2018. It is framed as an independent report in order to enable enable me to address address concerns in a manner that will be beneficial to the client, Equal Education (EE), as this important social  justice organisation reflects on its organisational culture and works towards a process of healing, and restorative and transformative change.

There are many factors that have led to my decision to write a separate se parate report, and some of the reasons are reflected in an email communication of 12 November that I sent to the other  panellists. This email was included in the Satchwell/Langa report at para 409. For ease of reference, I include the content of the email:

“After reading the first version three times, I find myself unable to associate myself with the findings (and hence the draft report). The numerous issues that are of concern hinge on how legalistic this process became and also how the needs of lawyers for

‘vindication’ permeate in the analys is of documents and interviews etc. There is definitely not a victim-responsive approach to the report in my view.

The option of a dissenting view in the final report is one that I have considered, and dismissed. The main reason being that I disagree with so much of the content, and writing a dissent would (in the main) be responding to the original report. That is more of an academic exercise, than one that is helpful. Another important reason is that this

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In the interests of full disclosure, I have not accepted any payment for my services as a Panel member and the only expense that Equal Education incurred on my behalf, is that of a return flight from Cape Town to Johannesburg for the first meeting and for local Uber transfers during meetings held in Cape Town.

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report reads like a judgement and makes findings which include exonerating individuals  –  despite   despite us not hearing the victims (by their choice), not discussing fully the 19 statements received (which we agreed was not evidence  –  but  but which we cannot  pretend does not include substance worthy of our our attention), attention), and also not having tested the authenticity of documents produced, especially by Isaacs and Achmat.

 I have asserted that this this Panel is not a court of law - and consequently consequently expect that our report needs to reflect this and be a source of substantive assistance to the client (EE). Unfortunately, I see this report as serving the interests of Isaacs etc in their

or ‘vindication’ with the Press Ombud, defamation cases against individuals quest f or such as the reporters and Jane etc. This report is not about transformative justice, in a sector that is in dire need for guidance - to enable reflections on organisational organisati onal culture, power/privilege/patriarchy, and also the potential abuse of authority.  Accusations  Accusations and allegations allegations lead to resignations, resignations, and impunity as standard practice in the social justice sector (LRC, EE and now CALS) CAL S) and also the public sector (SABC)

 –  with  with no real discussions on the individual, institutional or structural factors that are both causes and consequences of violations that are being experienced. In my view, a report should serve as a catalyst for creating a responsive space for discussions in EE and the wider social justice sector, which could possibly create an enabling environment for victims to be more willing to come forward. Considering the  pervasiveness  pervasiveness of violence against women in this country, we need to contribute contribute in some small way to change processes.

 Also, I anticipate anticipate that there there would be be little consensus among the panel on the findings findings in the final report, and as articulated on many occasions, Kathie will produce her own report. I respect the right of all Panel members to speak and hold on to their understanding and analysis –  including  including in the final report. In exercising my option not

to be associated with the Panel’s final report (and resigning prior to the publication of the report), I am choosing to hold on to my truth and my moral compass, especially when exercising a duty of care, doing no harm, and trying to find some other way to contribute constructively. Regarding the last point, I am considering working on a

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submission to EE in broad terms to enable discussions within the organisation and the

wider social justice sector (if they so choose).”2

I would like to acknowledge the work done by Judge Satchwell as Chair of the Panel and also Dr. Malose Langa, and stress that despite our differences regarding the analysis and findings, their work is appreciated. I acknowledge my shortcomings as an individual participating as a Panel member in a process that became overly legalistic; rendered invisible the people who  provided statements; and my inability to protect the complainants against further pain and trauma that has arisen due to the outcome of this process. I also recognise the difficulties for all parties who spoke to the t he Panel and made submissions, and I thank all those who cooperated with this process which enabled the Panel to do its work. Reflecting on the past 4.5 months and with the benefit of hindsight, it is i s my view that I should s hould have made  direct contact3 with EE, as the client, earlier in the process, to highlight my concerns, and to ascertain more substantively what EE hoped to achieve from a process that was not fully reflecting what was contained in their media statements, including the need for an investigative inquiry which would be responsive to complainants.4

It is unfortunate that consensus could not be reached by the Panel on one final r eport. This was due to differences in the interpretation and analysis of information that was received; the  judicialised and lawyer-driven process of the inquiry; the constraints of time for the Panel to have sufficient time to discuss and debate information received; as well as the timeline set by Judge Satchwell for the release of the final report, due to her other commitments. As noted above, the Satchwell/Langa report in para 409 includes an email sent by me to the Panel members noting my concerns about the 28 October draft report produced by Judge Satchwell , and explaining my decision to resign. In an email to Judge Satchwell, I offered to edit the report and include my analysis –  analysis –  subject  subject to a more reasonable timeframe being negotiated (due to my work obligations). This was not accepted by Judge Satchwell. Subsequently, Dr Langa and I had a telephonic discussion about reaching consensus on one report and the need for us to meet to have a substantive discussion as a team, in an effort to find common ground. Both Dr Langa and I were in agreement about our dissatisfaction with the limited time that we had spent, 2

 Email communication sent to Satchwell, Langa, Gaibie and Van Wyk on 12 November 2018 at 2.11pm. The email dated 15  November  November 2018 at 11.22am informs my colleagues colleagues about my intention to produce a report for EE by 10 December (EE had indicated the need to wrap things up by 30 December 2018). 3   Unfortunately, this was discouraged on the basis of ensuring transparency for all parties involved and the avoidance of  perceptions of bias. 4   Available at https://equal education.org.za/2018/0712/statement-update-on-doron-isaacs/

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 jointly as a Panel, on discussing our interpretations and analysis anal ysis of relevant r elevant information. Due to our concerns about resource constraints facing EE, Dr Langa sent an email suggesting that the Panel have a skype discussion on our concerns relat ing to the draft report. Judge Satchwell did not respond to that email and reinforced her timeline in a subsequent email.

Regarding some representations reflected in paragraphs 404 to 411 of the Satchwell/Langa report, suffice to say sa y that it is unfortunate that Judge Satchwell has chosen to portray my ethical choice and action in a negative manner in her report, despite the fact that I have expressed dissenting views at different times ti mes during the Panel’s existence. My decision to resign was not taken lightly and was based on my deep concerns about the futility of participating in a process where there was a dominant view which would take precedence in the outcome of the work of this Panel. This report is not the appropriate place to have this discussion, dis cussion, as it not does not add value to the issue at hand.

1.2 The focus of this report The Terms of Reference (TOR) allow for a report that focuses on broader issues of instit utional culture, power and victimisation, as reflected by the inclusion in the TOR for a review of the 2011 inquiry by the 2018 Panel. My understanding remains that the TOR governing this inquiry did not create a Panel that has judicial or quasi-judicial powers, and as such the Panel was not mandated to make findings of guilt or innocence (or vindication or exoneration, as has been referred to by some parties). Having cognisance of this understanding, this report will not  provide findings of guilt guilt or innocence, vindication vindication or exoneration, as there is insufficient basis for such findings. This may not be to the satisfaction of parties who participated in the Panel, or parties who could not participate for personal reasons.

My sense of ‘unfinished-business ‘unfinished-business’’ drives the need the need to contribute towards an outcome that may  be useful for EE in their discussions disc ussions going forward. In its it s analysis, this report is focused on a victim-centred approach and it adopts a contextual lens to the allegations that are reflected in the statements shared with the Panel. At a minimum, this report will attempt to engage with the challenges of adopting victim responsive approaches in an inquiry process; addressing the invisibility of the issues raised in the statements that the Panel received; and to provide some  preliminary recommendations to the client. Despite the laudable policy polic y documents developed  by EE, concerns remain about allegations of sexual offences including sexual harassment; allegations of cover-up, silencing, intimidation and bullying; concerns around processes for 4

handling such complaints in a victim responsive manner; and importantly the need for the organisation to review its practices.

The intention of EE in undertaking the 2018 inquiry is premised on fairness in a truth-telling  process which is underpinned underpinned by a victim responsive approach. This is reinforced in the media notice dated 12 July 2018 which sought to invite broader participation in the 2018 inquiry. It notes:

We want to acknowledge the courage of those who have already come forward. We reaffirm our commitment to confronting and addressing sexual harassment and other forms of genderbased violence in our organisation and doing so in a transparent manner. We will do so while ensuring fair, independent, investigative processes, and that there is a sensitive and supportive environment for those who have been mistreated to come forward. 5

In line with the commitment articulated above, this report attempts to provide a picture of the allegations regarding organisational culture that exists at EE, and highlights challenges when  patterns of conduct are ar e not addressed, and impunity impunit y becomes the norm. I have been granted  permission to use confidential information and will make make mention of some issues raised in the statements that the Panel received from the complainants, and also from the submiss ions made  by  by the Women’s Legal Centre (WLC). (WLC ).6 The section of the report containing the excerpts, has representatives.7 The excerpts do not fully  been shared with me by the complainants’ complainants’ legal representatives. reflect the substantive contents of the statements submitted to the Panel, whether about individual and/or organisational wrongdoing. It is my view that EE needs to engage with the complainants and their legal representatives to fully understand the scale of allegations made in the statements. This is in line with the transformative approach that the complainants seek, in their quest for justice, and also in line with EE’s commitment to treat all complainants with respect and dignity.

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  Available at https://equal education.org.za/2018/0712/statement-update-on-doron-isaacs/ The Panel was informed that what guided the WLC’s involvement in this inquiry was their sense of commitment to ensuring that women who work within the social justice sector are safe and secure, and that the social justice sector itself transforms. It is sad to note that the donor community was not responsive to funding the work that the WLC was called upon to undertake under these unexpected circumstances, in order to assist the Panel in its investigative inquiry. For any social justice organisation to step in at short notice, without additional funds, to assist in providing a victim centred approach is laudable and I would like to thank the WLC for its contribution to the work of the Panel. 7  The excerpts were shared with all clients by the WLC. 6

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The demand by named parties has been for an unequivocal outcome i.e. clearing these parties of all wrongdoing. 8 Their legal representatives have at different sta ges, put the Panel on notice, namely by articulating that an outcome which does not satisfy vindication and exoneration, will be open to review. In addition to other communications, a recent letter from Mr. Isaacs attorney, dated 16 November states: “An outcome which merely notes that there is insufficient evidence to confirm allegations will be an injustice and will set an unjust and unfortunate  precedent. In the circumstances, such an outcome outcome would be be open to review.”9 What was lost in the legalistic framing and subsequent process, was that this process was not a criminal trial  –   but was an investigative inquiry seeking to gather information which would be of of assistance to EE to assist them to move forward.

In addition, what is a loss for the social justice sector, was the opportunity to substantively address issues of power, privilege, patriarchy, racism, sexism, classism and social status, including the intersections, among others, in our quest to understand the silences of women whose dignity, privacy, and bodily integrity rights are violated, and to have empathy for their consequent requests for protective and participatory measures. During this process, the overwhelming need was for vindication, and not necessarily the best interest s of women and/or EE. This sad state of affairs needs to be reflected on by all parties, as we think about our contributions in this inquiry process. A crucial question is whether we effectively exercised a duty of care and worked within an ethic of ‘do no harm’ to uncover facts that would provide  prima facie evidence of patterns of behaviour, which have led to a fractured organisation that

seems unable to deal with allegations that continue to haunt it.

I acknowledge having sight of media reports and other information in the public domain, including unsolicited communications which have been shared with me, post the release of the Satchwell/Langa report. However, this report relies on documentation that I received during my participation in the Panel. I have no doubt that the objectivity of my report will be questioned, and also criticised, on on numerous grounds, including among others, usage of the excerpts from the statements that were received by the Panel; the absence of engagement with the legal issues raised in hearings; and the absence of legal findings of guilt, innocence, vindication or exoneration, as demanded by the parties in numerous communications. 10 The

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 Communications on file with author.  Communication on file with author. 10  Communication on file with author. 9

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focus of this report hinges on the t he understanding of an inquiry as a fact-finding fact -finding process and not a legal process intended to pronounce findings of exoneration. Also, the report of such an inquiry needs to be helpful to EE as the client, to assist them in their efforts to work towards changing the organisational culture.

It is unfortunate that Adv. Harvey, acting on behalf of her client Mr. Isaacs, in a submission sent to me on the 2 December 2018, has chosen to make a statement that potentially impugns my objectivity and integrity (prior to the release of m y report) by stating: “The critics’ analysis and response are designed to influence the dissenting panelist, and the danger that the dissenting report will be influenced by the need to address the concerns of those who criticize the majority report cannot be ignored.”

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  This is unfortunate as I have no control over

‘distorted’ media reports and other statements made by people, and thus cannot take responsibility for the public’s interpretation and viewpoints. She also attributes the prejudice to her client, to a delay dela y in producing the dissenting report, while ignoring the fact that I had no  part in the timing of the release of the Satchwell/Langa report r eport - which was released despite a  plea from the client, to hold off the release and to wait for f or both reports to be released rel eased at t he same time on the 10 December.

2. The Functioning of the Panel of Inquiry An inquiry is aimed at truth finding and restoring confidence in an institution. 12 This report notes that it is important to distinguish between a court of law and a panel of inquiry, so as to avoid false expectations, expectations, more especially when ‘vindication’ and ‘exoneration’ demands are made to a Panel that can only produce a report with  prima facie findings that are non-binding. The Panel cannot make findings of guilt, innocence, exoneration or vindication  –  as   as this was not a criminal trial. Furthermore, functioning within the parameters of the Constitution, the Panel exercises its powers, functions and procedures in a discretionar y manner, but is not bound in the same way by procedural and evidentiary evidentiar y rules that are applicable to a court.13

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 Communication on file with author. Michael Bishop ‘An accidental good: the role of commissions of inquiry in South African democracy’ conference paper  November 14, 2014  New York Law School Law Review November 13  Cathy Powell document on Commissions of Inquiry October 2018 (on file with author) 12

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The procedures adopted have to be inquisitorial, in order to elicit facts that would assist the client, EE, in their effort to reflect on organisational policies, culture and practices. As argued, “the inquiry was set up after Isaacs was allowed to resign and with the knowledge that he could no longer be bound to any formal labour law processes. Consequently, any evidence that was  produced or any findings that were made would effectively have no weight in law as he could face no legal consequences from the inquiry. The inquiry therefore became a fact-finding exercise....” exercise....”14 An inquiry that is set up to seek information on sexual violence broadly, including sexual harassment, will by necessity have to be victim-responsive, taking into account issues of vulnerability of complainants who choose to participate and exercise agency. Respecting the rights of all parties, including those accused of wrongdoing, does not preclude a greater focus on protecting the interests of the victims of sexual harassment, intimidation and bullying. In this instance, the TOR establishing the 2018 inquiry is not explicitly reflective of an awareness of the nature of sexual harassment proceedings and the need to be victim-centred. Such an approach would include addressing issues of access, responsiveness, fear, stereotyping of victims, stigma attached to complainants, and the need for confidentiality and anonymity, among others. Courts in South Africa have recognised the trauma and psychological harm which accompanies a victim of sexual violence, and have required that processes should be designed to ensure that they can come forward and report violations in a sensitive and supportive environment. 15 It is my understanding that the Panel in being given the ‘ power  power to er to fulfil its function’, was mandated was  mandated to devise a process regulate its own proceedings in ord er that would allow potential complainants to come forward. 16  Thus the Panel, using its discretionary powers, attempted to make provisions to address some of these issues, as noted in the Satchwell/Langa report. In addition, Cheadle, Thompson & Haysom (CTH) was appointed by EE in May 2018 to  provide a secretariat service to the Panel, and they made attempts to elicit complaints, through through  public notices that were issued. is sued. The recognition that a law firm was not necessarily the t he best option to deal with complainants in this inquiry, led to potential complainants subsequently  being referred to the WLC. The Panel was notified that complainants had already contacted the WLC and the consensus was that as a social justice law centre that advances women’s rights

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 WLC submission dated 20 October 2018 at Para 12  Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others 2018 (8) BCLR 921 (CC). 16  Para 14 of TOR. 15

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and equality, this organisation would be an appropriate centre to refer potential complainants to, in order to assist the Panel with receiving testimonies. The WLC was sent correspondence corres pondence by CTH on the 13 August 2018 which confirmed the TOR about the investigation of allegations of sexual harassment and/or similar misconduct against Isaacs17 and envisaged that complainants could come forward in one of four ways: a written complaint; providing testimony to the Panel without a written complaint; providing a written complaint and oral testimony to the Panel; and submission of a written complaint with the assistance of CTH.18 The correspondence also set out the procedure to be followed in the event that complainants appeared before the Panel in person. The correspondence further notes that ‘the Panel recognises that the inquiry has a unique identity and therefore the Panel must tailor its procedure to fit the appropriate context .’19

The abovementioned information reflects that the Panel in the early stage of its work, acknowledged its responsibility to address the vulnerability of complainants and thus was aware that a victim responsive approach was necessary. With the subsequent overly legalistic  processes that ensued, the position shifted and the challenges are reflected in various communication between the Panel and affected parties. As part of a reflective and educative  process on victim-centred approaches in an inquiry, I would encourage EE to engage with the WLC on this aspect. For ease of reference, it is worth noting some of the arguments that were raised in response to the shift: “ At no point in this correspondence correspondence [13 August] does CTH indicate that should our clients elect to make anonymous and confidential confidentia l written submissions they would be required to justify the inclusion or consideration of the submissions, and that they would need to indicate the

weight to be attached thereto by the Panel. …. We submit that a victim -centred approach is not one which is overburdened with processes of legality and formal litigation processes, which overwhelms the victim and leads to secondary victimisation. It does not seek to frustrate the  participation  participation and gathering gathering of information. information. There should should be no strict application application of the law law of evidence and rules associated with the introduction thereof, and the weighing up thereof, which lends itself to casting doubt on the credibility of the experience of violation suffered by the victim. The current emphasis in this matter on the rights of parties who believe that they have

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 Para. 2 of the letter dated 13 August 2018 sent by CTH to WLCE  Para. 3 of the letter dated 13 August 2018 19  Para. 7 of the letter dated 13 August 2018 18

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an interest in these proceedings cannot be at the centre of a process that seeks to uncover the  facts. Their insistence insistence on due process and turning the investigation into an adversarial trial

effectively only frustrates the investigation of the Panel…. Since the process is a preliminary investigative one, the issue of weighing up evidence is not an appropriate or necessary consideration. The weight to be attached to evidence is only at issue during a judicial or quasi judicial process. At such a preliminary preliminary stage, it is only required of the Panel P anel to receive the submissions made in the matter and assess whether or not these establish a prima facie case that Isaacs and others engaged in wrongdoing that amounts to misconduct for the purposes of

 EE’s policies.” policies.”20

The abovementioned submission identified many concerns that resonated for me, as the work of the Panel progressed, with the need for vindication permeating the process. The minimal understanding by the parties seeking vindication, to the difficulties that generally face complainants who seek responsive protective and participation measures, was difficult to understand, considering that these individuals are all activists who have been involved over decades in social justice work in South Africa. Remembering the violent history of our past and the pervasive and systemic problem of gendered violence that we continue to face, we cannot ignore the challenges that victims face in coming forward and breaking their silences. It is apt to cite a point made recently by Prof Pumla Gobodo-Madikezela when discussing the functioning of the South African Truth and Reconciliation Commission, where she refers to the truth of wounded memories :

“It’s a deep and traumatic memory that could be shared, but it is impossible to translate into oborative evidence which could survive the rigours of the law.” 21 objective and corr oborative

This profound observation reflects the reality of some of the people who provided statements. It is impossible to convey ‘the truth of wounded memories’  into  into a strictly legalistic process and its concomitant demand, which would have satisfied the process that developed as the work of the Panel continued within a quasi-criminal trial mode.

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 WLC submission to Panel dated 19 October 2018  Pumla Gobodo-Madikizela in The Conversation 29 November 2018.

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3. Organisational Culture as Reflected in Statements Received from the Complainants It is important for this report to honour the trust placed by EE in the Panel, and also, to acknowledge the voices of the complainants by sharing short excerpts reflecting their experiences.22  These excerpts are not being included as evidence of wrongdoing by any  particular individual, but are provided to highlight the organisational culture that allowed for certain patterns of conduct linked to sexual harassment, intimidation, bullying, impunity and the silencing of women. The adoption of an inquisitorial process, when patterns of conduct are alleged, can lead to the eliciting of  prima facie  evidence of wrongdoing by individuals. Unfortunately, we as a Panel, fell into the trap of adopting an approach that is expected in an adversarial process. The consequence is that the statements were dismiss ed and an opportunity was lost to investigate the broader systemic issues around power, privilege and the patriarchy. Among others, these factors have contributed to the negative organisational culture, as reflected in sexual abuse, intimidation and bullying allegations.

In line with the TOR 23  and the procedures adopted by the Panel, the WLC submitted 19 statements to the Panel for the purposes of this inquiry. Each individual set out the terms for their participation in their written statements, state ments, wherein they provide information that is relevant to the TOR, but also to a deeper understanding of the patterns of behaviour and the organisational culture that existed in EE. As conveyed to the Panel by the WLC on behalf of their clients, none of the complainants expected the Panel to provide justice (for them) within the formal legal understanding of accountability findings, penalties, and so on. Their need is for a larger transformative justice process that is about being seen and heard in a safe and responsive space, which could possibly lead to substantive discussions about organisational culture and practices, in respect of dealing with gendered sexual offences broadly including sexual harassment, intimidation, bullying and other practices that effectively lead to the silencing of women, to impunity for perpetrators, and in some instances the exclusion of individuals from work in the social justice sphere.

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  The excerpts were provided to the author by the WLC and each client has received the excerpt that was taken from the statement provided. The composite document has not been shared with the clients. 23  Terms of Reference, clause 13.

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Excerpts from statements Person A was a member of the EE staff at management level when the sexual harassment

reports surfaced. The statement provides some insight into how such discussions was received by management and how she felt that she was being intimidated or silenced. She speaks about the organisational culture of silence and intimidation when people raised questions about sexual harassment. She was also part of the management team that as ked for the 2018 investigation.  _______________________  ___________________________________ ________________________ _______________________ ____________________ _________ Person B speaks of having been warned about sexual predation within the organisation when

she started working there. On hearing accounts of sexual harassment of volunteers and also staff, she was uncomfortable and reported it to management. She felt intimidated when she was accused of rumour-mongering, due to her speaking up about the alle gations that she was  privy to. She states that she was removed removed from participating participating in an activist school programme programme  because she spoke out.  _______________________  ___________________________________ ________________________ _______________________ ____________________ _________   confirms the contents of other statements about sexual harassment allegations at Person C  confirms EE. The statement refers to the level of intimidation and duress that was experienced when he tried to speak about sexual harassment perpetrated by certain individuals. He cites an example to show the level of power that some individuals had in respect of people’s careers. careers.  _______________________  ___________________________________ ________________________ _______________________ ____________________ _________ Person D was sexually harassed during the time that she volunteered at Equal Education.

When she started rejecting advances, negative comments were circulated at work describing her as unstable and crazy, as damaged and confused, and accusing her of pursuing an individual at management level at EE.  _______________________  ___________________________________ _______________________ _______________________ ____________________ ________   speaks about being influenced by someone in management to reject complaints Person E  speaks from women who came forward to report sexual harassment. Initiall y, she dismissed rumours about sexual harassment by numerous women –  women –  but  but later believed them when she personally experienced bullying and intimidation. She speaks about the hostile toxic masculine environment where some people would be verbally abusive to staff, and how fearful people were of speaking up. She highlights how deeply divided the organisation was and how those

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in power abused that power.  _______________________  ___________________________________ ________________________ _______________________ _____________________ __________  was a victim of sexual harassment. harass ment. She had a previous consensual relationship with Person F  was an individual in management - and she highlights how this fact was later used to sexually harass her online. Because she was working with an organisation associated with EE, contact with her was manipulated and she was consequently made to feel that she had no choice but to engage with him, because her position was at stake, as he had the power to discredit her standing and reputation.  _______________________  ___________________________________ ________________________ _______________________ ___________________ ________ cate gory of women who was not working for EE, but who through her Person G falls into a category work became known to an EE staff member. He used his position to gain access to her, engaged in an online relationship with her and later used that to manipulate her into engaging in a sexual relationship with him. She believes that the power differentials heavily influenced her ability to objectively make decisions about engaging in the relationship. She notes that the relationship amounted to an inappropriate sexual relationship.  _______________________  ___________________________________ ________________________ _______________________ ______________________ ___________ Person

H   speaks

about

the

organisational

culture

that

allowed

for

sexual

offences/harassment of equalizers, volunteers and staff. She speaks about how management knew about this, but chose to look the other way  –  and   and also rejected proposals that were suggested to address trauma that was being experienced. She argues that these issues are important to include in statements to the Panel, because it confirms that the organisation was disinterested in issues of women and how to protect women in the organisation a gainst sexual offences. She speaks about the climate of intimidation and silencing and the measures that some people were willing to take to silence people. In her case, one individual knew things about her personal life that she did not want to be made public - and threats were made to expose her personal secrets –  secrets –  as  as part of the intimidation and silencing.  _______________________  ___________________________________ ________________________ _______________________ _____________________ __________

 -speaks about the climate of intimidation and silencing and how after the allegati ons Person I  -speaks were made public in the M&G there was pressure put on people to support the named individual. In her statement, she talks about how the support base worked actively behind

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the scenes to change the narrative and to smear the women who wanted to come forward (even before the 2018 Panel was established).  _______________________  ___________________________________ _______________________ _______________________ __________________ ______  refers to the environment of masculinity and how the environment was one where Person J  refers women and young women in particular were not safe. She confirms the allegations of a culture of bullying and intimidation. Also, that management ignored the inappropriate sexual relationships that were taking place between equalizers and facilitators. She identifies a culture of exclusion if you did not fit into a particular group that was favoured by management. She also speaks about the race divide at EE, the culture of patronage that existed, and how preferential access to management positions depended on patronage systems linked to certain individuals.  _______________________  ___________________________________ ________________________ _______________________ _______________ ____  provides the Panel with insight into how sexually inappropriate relationships were Person K  provides condoned and how young black women were groomed with promises of education and opportunities. She corroborates the experiences of others in respect of sexual harassment and the culture of fear. She experienced feelings of discomfort due to sexually inappropriate  behaviour towards her. She clearly clea rly provides insight into grooming and how it i t played out at EE. She alleges that certain young women were favoured and given opportunities - and as long as people were happy with you and you did what they wanted - you enjoyed favours. She also talks about the desperate climate in which young black women worked at EE and how they saw EE as an opportunity to better themselves. She alleges that some people in management used this desperation to prey on young women. She confirms the intimidation experienced by people who spoke up about problems at EE, and also asserts that after the  publication of the Mail and Guardian articles, there was a concrete campaign to get widespread support for the named individual, including from among others, past equalizers.  _______________________  ___________________________________ _______________________ _______________________ ____________________ ________ Person L confirms sexual harassment and sexual assault in relation to herself by a senior

member of EE. Other statements confirm that sexual assault rumours were s pread about her. She was actively discredited within EE and associated organisations, and with persons involved directly and indirectly in these organisations. Her fear is that should her statement  be made public, and if a finding is made m ade that exonerates certain ce rtain individuals for acts that are criminal in nature, this may possibly be used to sue her for defamation.

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 _______________________  ___________________________________ ________________________ _______________________ __________________ _______ Person M   confirms that she was sexually harassed on line by an individual in EE

management. When she rejected him, his tone and attitude changed very quickly, and he responded by attempting to demean her by calling her names and using misogynist and insulting language. He subsequently apologised years later (in 2018 after the allegations against him became public) and acknowledged some level of wrongdoing. She was sent t wo letters by him: a letter containing an apology as well as a letter which she believes was aimed to intimidate her from coming forward to make submissions to the 2018 Panel. She states that the fact that the person does not use the words ‘sexual harassment’ in his apology and other correspondence to her, is irrelevant, bec ause that is what his conduct c onduct amounted to.  _______________________  ___________________________________ ________________________ _______________________ ___________________ ________  was a staff member during the period when rumours about sexual harassment Person N  was were circulating. She speaks of being intimidated when she did not want t o travel by car to another province with someone who had been criminally charged with sexual assault and who had a drinking problem; she was reprimanded by management and told that her objections were based on her being middle class and privileged/ racist. She also confirms that there was a culture of o f inappropriate sexual behaviour at EE that was c ondoned by management, and that young people were being put at risk of sexual abuse. When she raised her concerns, she was subjected s ubjected to constant bullying by two people in management and it was made clear that th at some people in management were not intereste d in meeting their obligation of care towards the female staff.  _______________________  ___________________________________ ________________________ _______________________ _____________________ __________ Person O states that contact was established with her through manipulative means by an EE

staff member in management. She subsequently engaged in what she describes as ‘an extremely harmful harmful sexual relationship with him’ –   with him being emotionally and  psychologically abusive. She details an incident that may be described as rape or sexual assault and describes their relationship as one where she was groomed. Her statement refle cts a pattern of behaviour in how this individual approached women online and during late-night meetings, under the pretence of joint professional interests. Her fear is b ased on the linkages to her continued work in the social justice sector and how, because of his name and reputation, he can still negatively influence her work prospects.  ________________________  ___________________________________ _______________________ ________________________ ____________________ ________ Person P  confirms the narrative of patterns of an individual at EE suddenly discrediting

15

women for no apparent reason when he had formerly held them in high regard. She alleges that personal relationships existed among all the members of the 2011 Inquiry Committee and asserts that because of the personal relationships, the Committee should have outsourced the investigation to an external independent person.  _______________________  ___________________________________ ________________________ _______________________ _______________________  ____________  Person Q worked for an organisation closely associated with EE, and met people from EE

in the course of her work. A member of EE management initiated and started flirting with her in texts and online and this led to a sexual encounter, which she felt pressured into by him. She did not want to have sex, but despite her indications to that effect, his insistence made her feel prudish and eventually compelled to have sexual intercourse with him. Shortly after the physical sexual engagement, he cut off ties with her. He effectively left her feeling used, and that he never had an interest in a real relationship with her. Although she would later hear about the investigation investi gation in 2011, she was never contacted and she did not know the scope and extent of that investigation. She feels co mpelled to come forward in 2018 because she believes that this person is being dishonest about his sexual relationships with people working at or associated with EE.  _______________________  ___________________________________ ________________________ _______________________ ____________________ _________ Person R had an inappropriate sexual relationship with someone in EE management shortly

after the 2011 inquiry. At that time, she was volunteering at EE and had been actively involved in one of its branches for a number of years. She was much younger than him, and describes how she not only engaged in the relationship, but was also influenced to keep it a secret, because of his position at EE and his power in the sector. She highlights how the environment at EE enabled this same person to sexually harass and to engage in inappropriate relationships with women. He was in a position of such power that despite the public narratives about his abuse of women, there was a sense that no one had the power to hold him accountable.  _______________________  ___________________________________ ________________________ _______________________ ______________________ ___________   was not employed at EE but was closely associated with persons who worked at Person S  was EE, including knowing people in management for many years. He was privy to some documentation that was being circulated during the 2018 inquiry, pertaining to the 2011 inquiry, and specifically correspondence which

S   considered

confidential. The

correspondence which was sent to him, disclosed the name of the American intern “KK” “KK” and  and included private correspondence between “KK” and “KK” and the EE staff member. S  understood  understood that

16

this email correspondence was sent to him to influence his thinking and to smear “KK’s” name. The correspondence included reference to “KK” being raped. S  is  is concerned about the issue of the lack of consent, the circulation of sensitive material, and also about the ethics of circulating the emails and correspondence during the 2018 inquiry. He interprets this to be “KK”  to those working in the social justice clearly to create a negative impression about “KK” to sector.  _______________________  ___________________________________ ________________________ _______________________ _____________________ __________

The 2018 Panel has been cautioned by Mr Isaacs attorney to the effect that t hat “The Panel inquiring into allegations against Mr Isaacs was not tasked with fashioning a set of moral standards for Equal Education by considering or pronouncing on what is, or is not appropriate or becomi ng.” The communication further notes: “Social justice activist youth organisations are intense environments, where young people define themselves in ways that can’t be compared to ordinary workplaces where people might be associated merely for the purposes of making their living. The human energy channelled by youth activists into their work expresses, develops and realises profound and deeply meaningful values and ideals, which are part of their personal identity. As part of this process, young activists form strong friendships and intimate relationships that transcend professional and collegial relations. For many, forming intense or intimate bonds with someone ‘in the movement’ is integral to a deepening connection to new values and commitments. In developing standards of conduct, therefore, it would be unrealistic and unresponsive mechanically to import rules which are appropriate to a manufacturing, commercial or professional environment.” 24

The communication goes further in addressing the issue of sex and consent and argues that “Where there is consent, and in the absence of violating a rule or standard which has been adopted by the social justice organisation, an independent panel of enquiry should not interfere. To do so would be inappropriate, because it would be to impose, ex-post facto, a standard of sexual morality whereas such standard is open to contestation.” 25

I will refrain from expressing an opinion on the above statements, as I may be accused of imposing outdated views and values on sexual mores and morality, which are not in line with 24

 Communication sent by Mr Haffegee on 16 November 2018  Communication sent by Mr Haffegee on 16 November 2018

25

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the current landscape that exists in the social justice sphere. However, it is important to note the articulations in the statements that reflect an organisational culture that is experienced by women as patriarchal, hierarchal and victimising of some.

4. Investigating the Allegations as per the Terms of Reference

4.1 Organisational values The investigation envisioned by the TOR of this inquiry, includes a re view of the 2011 inquiry  process; examination of an article arti cle in the Mail & Guardian concerning the Kalk Bay incident linked to ‘Jane’; and an examination of any allegations in respect of sexual harassment or misconduct linked to Isaacs. The conduct of Isaacs, in the course and scope of his employment, is governed by the South African Constitution, relevant statutory law and also the regulation of conduct through EE’s Constitution, 26 its Code of Conduct, 27 and its Policies and Procedures document.28

The organisation’s aims and objectives include promoting and defending basic democratic  principles and rights, including freedom of expression, freedom of association, access to information, privacy, good governance, and freedom and security of the pers on, which includes freedom from sexual harassment and gender-based violence. The values that govern members of EE include that ‘all members of EE are to act with honesty and integrity in everything they do; defend human rights; work to eliminate direct or indirect discrimination; and to hold their leaders and themselves accountable’ accountable’.29

4.2 Status and value of complainants’ statements The statements received by the Panel allege a pattern of abuse of power by some people in leadership positions in EE. It is alleged that their reach, influence and power created an environment where the human rights of some women were violat ed with impunity. Obviously, this environment did have a negative impact on decisions to utilise the internal procedures to 26

 Constitution of Equal Education adopted at second National Congress on 05 July 2015.  Code of Conduct for Equal Education Members, adopted by the National Council on 06 January 2013. 28  Equal Education Policies and Procedures Manual, 2016. 29  EE Constitution at 6.1.1; 6.1.6; and 6.1.8. 27

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disclose incidents of sexual violence, intimidation and bullying - as the organisational culture was not perceived as one responsive to reporting. reporting . The Panel’s decision not to engage with the contents of the statements received was a lost opportunity. In the quest to analyse how sexual harassment functions and how organisations fail i n their legal and policy obligations to exercise a duty of care to employees, one needs to analyse the allegations, investigate them, and also question whether the organisation provided a victim-centred approach and a responsive environment that allowed for disclosure. From inception, there were numerous challenges facing the investigative work of the Panel, including among others: the deficits identified in the TOR; the need to be victim-responsive while respecting the due process rights of all; the encouraging of potential complainants to come forward and to provide information; knowledge of the financial and time constraints facing the client; and the need to finalise the process within a prescribed time. One issue that was discussed extensively by all parties is that of procedural fairness, in order to avoid unfairly  prejudicing any of the parties involved in the the inquiry. It was argued that natural justice and the requirement of procedural fairness requires the Panel to receive and test evidence to establish whether or not  prima facie evidence of wrongdoing exists. But it was also argued that the  principles of natural justice may be departed from, in circumstances where public policy or the  public interest requires it. 30 Additionally, it was argued that Item 9.5 of the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace, 31 provides that employers and employees must ensure that sexual harassment matters are investigated and handled in a manner that ensures that the identities of the persons involved are kept confidential. South African case law also reflects and reinforces such normative standards.32 The TOR allowed for the confidential participation of complainants, while also providing for access to documentation by Isaacs. The complainants opted for complete confidentiality - in terms of their participation, their identity and also the sharing of their writte n submissions. The majority of complainants were open to engaging with questions of clarity that might be needed  by the Panel, and also agreed that the content of their submissions could be used to frame questions that the Panel wished to put to Isaacs or any other interested parties  –  subject  subject to the

30

 Minister of Justice v Bechler  1948  1948 3 SA 452 (A)  GN1367 of 1998, and amended by GN1357 of 2005 in Government Gazette no 27865 (04 April 2005), issued in terms of section 54(1)(b) of the Employment Equity Act 55 of 1998. 32  Matambuye v MEC for Education and others [2015] ZALCJHB 455 (LC);  Biggar v City of Johannesburg, Emergency  (2008) 29 ILJ 1196  Management Services (2011) 32 ILJ 1665 (LC);  Mokoena and another v Garden Art (Pty) Ltd and another  (2008) (LC); and Piliso v Old Mutual Life Assurance Company (SA) Limited and Others  (2005) ZALC 107 (LC). 31

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 protection of their identity. In responding to a question from the Panel about the legal consequences, for the complainants, if their submissions are not dealt with confidentially, the WLC argued that this would be “an “ an unjustifiable breach and violation of their constitutional right to privacy, which in these circumstances is intimately connected to their rights to dignity, equality, freedom of expression, freedom and security of the person, and freedom of trade, occupation and profession.” profession. ”33 The violation of the constitutional rights of the people accused of wrongdoing was persuasively argued by the different legal teams representing the named  parties. As has been noted, the Panel did attempt to find a solution that was victim responsive, but this was challenged on many levels. For example, there were strong dissenting views on the issue of what constitutes evidence and the weight to be attached to confidential and anonymous statements that are submitted to an investigative inquiry. As is accepted practice in cases of sexual offences cases, it may be in the public interest to ensure that p rotective measures, where needed, are put in place to ensure the participation of women in criminal proceedings. However, in the context of an investigative inquiry, there should not be an onerous requirement to protect the interests of the accused to the detriment of the needs of the victims, including through turning an investigative process into an adversarial adjudicative process.

The WLC argued that the lack of certainty in respect of procedures in place prior to the commencement of the inquiry, or during the work of the Panel, resulted in the complainants  being treated as dominis litis  (as if they instituted the proceedings and thus they bear the burden of proof), as opposed to them being complainants responding to a call for submissions, as per the notice issued by EE. 34 The changes in procedures of the Panel regarding the question of what can be admitted as evidence, and also the weight to be attached to statements, raised concerns about the uncertainty that the complainants were faced with, after   involving themselves in the investigative process. The ensuing uncertainty resulted in the complainants not knowing the exact nature of the process they were participating in, or the procedures that form part of it. This then impacted their ability to make informed decisions about their level of  participation.

33

 WLC submission 19 October 2018  WLC submission 19 October 2018

34

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In respect of evidence and the weight to be attached to the statements received, the WLC adopted a victim-centred approach and argued that: “…. all evidence that relates to the purpose for the establishment of this inquiry is relevant ed by the Panel… The Panel has no choice but to admit and assess the and should be accept ed submissions as relevant evidence of sexual harassment, similar misconduct, bullying and intimidation. The Panel is then required to assess whether the evidence amounts to prima facie

ence of wrongdoing and violation of any of EE’s policies and procedures and the Amended evid ence Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace…. The question of weight goes to the heart of credibility and believability. The question is therefore:

 should our clients’ submissions be dismissed purely because they have opted to remain confidential in a process unfolding in a hostile environment? Should their accounts be dismissed as not credible because they fear reprisal from the persons who have harmed them

in the past? …….  The environment in which these women work is a small social justice just ice network of interconnected organisations and people. Their fear of reprisal, having already lived through a reality of intimidation, cannot in a process of investigation be used against them

because of questions of weight.” 35

The decision by the full Panel, that the complainants’ statements did not constitute evidence in the formal legal sense, was based on substantive legal arguments linked to due process considerations that were raised by the parties. However, there was no consensus on the issue of how the Panel could utilise the information contained in the statements. The strictly legal approach to evidence in the inquiry process, led to an outcome that rejected the statements, with the Satchwell/Langa report noting that there were no complainants in this inquiry. The rejection of the statements in totality was not a consensual decision.

4.3 Understanding sexual harassment and similar misconduct Professor Halley of Harvard Law School made a submission to the Panel, at the behest of Mr. Isaacs, who had informed her that the Panel was seeking information. The Panel had not authorised him to seek any such information on our behalf.  36  This submission was limited to information about the handling of sexual harassment in the USA. The WLC also provided a

35

 WLC submission 19 October 2018 It is important to note this point, as some complainants’ statements reflect the practice of Isaacs to solicit statements of support and to engage in inappropriate framing of contact with people who may be beneficial to his cause.

36

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submission, citing both academic sources as well as South African case law, in an effort to educate the Panel about a contextual understanding of sexual harassment. In the interests of space, and also utilising what is of direct relevance to the Panel’s inquiry, this t his section draws on the WLC submission. Catherine MacKinnon argues that sexual harassment is ‘ an expression of dominance laced with interpersonal contempt, the habit of getting what one wants, and the perception (usually accurate) that the situation can be safely exploited in this way  –  all   all expressed sexually. ’37 It

has been recognised that sexual harassment creates ‘a hostile work   environment in which  sexualized behaviours interfere with a person’s work or creates an “intimidating, hostile, or offensive working environment.”’ environment.” ’38 Regarding the issue of consent, Sanger questions whether consent can truly be provided and exist in the workplace when there are power dynamics and fear present. 39  She argues, that ‘consent between people of differing power within the same institution is only an illusion: no one in the weaker position ever really consents freely…’ . Thus, she asserts that it is necessary to look behind the consent, to the options available to the consenter when providing consent, and to interrogate how power often creates a threat or fear of reprisal in subordinates, who may otherwise prefer to decline a proposition. Research also indicates that appeasement is a common means by which complainants/victims respond to sexual harassment. 40  Appeasement is the tactic used by the harassed in order to avoid confrontation, as the complainant may be afraid of the cons equences of reacting ‘more assertively.’41 Case law has also noted that sexual harassment can occur where a consensual relationship existed previously. 42 From a normative perspective, there is an excellent legal framework in place to address sexual harassment in South Africa. In addition, the courts have also been proactive in expanding our understanding of factors linked to sexual harassment. For example, the Labour Appeal Court has recognised that ‘ at its core, sexual harassment is concerned with the exercise of power and 37

 R B Siegel & C MacKinnon (eds)  Directions in Sexual Harassment Law (Yale University Press, 2004). Debbie Dougherty ‘Sexual Harassment as [Dys]Functional Process: A Feminist Standpoint Analysis’ (2001) 29 Journ al of Applied Communication Research 372 at 375. 39 Carol Sanger ‘Consensual sex and the limits of harassment law’ is R B Siegel & C MacKinnon (eds)  Directions in Sexual  Harassment Law (Yale University Press, 2004). 40 Louise Fitzgerald and Suzanne Swan ‘Why Didn’t She Just Report Him? The Psychological and Legal Implications of Women’s Responses to Sexual Harassment’ (1995) 51  Journal of Social Issues 117 at 120. 41  Ibid. 42  Ahmod and Fire Appliances Ltd  [2004]  [2004] 5 BALR 529 (MEIBC). 38

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in the main reflects the power relations that exist both in society generally and specifically within a particular workplace. While economic power may underlie many instances of

harassment, a sexually hostile working environment is often ‘l ess ess about the abuse of real economic power, and more about the perceived societal power of men over women.’.’ 43 The court further stated that ‘by its nature such harassment creates an offensive and very often intimidating work environment that undermines the dignity, privacy and integrity of the victim

and creates a barrier to substantive equality in the workplace.’ 44 In addition, case law reflects an understanding that a victim’s reluctance to complain must be considered in light of the personal and power dynamic in existence, which inhibits a person from taking formal steps against the perpetrator. In the Gaga case45 the employee did not report the sexual harassment experienced and this only came to light during her exit interview. She had not lodged a grievance during her time with her employer, and had, on the surface, a good working relationship with the perpetrator. Our courts have also acknowledged that not all victims choose to report incidents of sexual harassment when it occurs, and some people may take years to break their silence. In the Rustenburg Platinum case, the Court discusses some reasons why a complainant may choose not to come forward immediately, immediatel y, including ‘a fear of backlash’ , that ‘…a complaint of sexual harassment

against

th at

‘bright

blue-eyed

boy/girl’

in

the

office

or

a

senior

employee/executive, may be a career ending or career limiting move, to be regretted dearly’ , dearly’ , and the fear of having to publicly substantiate the allegations in the face of ‘ relentless and unsympathetic cross-examination .’46

This brief overview reinforces the perspective perspecti ve that sexual harassment is underpinned by power dynamics; that consent is not devoid of fear, coercion, threats and duress; and that there are many factors that lead to silencing of victims victims of sexual harassment. A range of factors that needs to be taken into account in an investigative inquiry that aims to find prima facie evidence of sexual harassment includes, among others: increasing the knowledge base and our understanding of sexual harassment, beyond statutory and policy frameworks; reflecting on implementation challenges of organisational policies; understanding how power intersects with status and privilege and how this can lead to abuse of authority, silencing of victims and

43

Campbell Scientific Africa (Pty) Ltd v Simmers & Others (2016) 37 ILJ 116 (LAC) Campbell Scientific op cit at para 21. 45 Gaga v Anglo Platinum Ltd & Others (2012) 33 ILJ 329 (LAC). 46  Rustenburg Platinum Mine v SAEWA obo Bester and Others para 51. 44

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impunity for perpetrators; the impact of unresponsive environments which leads to victims not coming forward to report; and the victimisation and stereotyping of victims. These are issues that have been highlighted in some of the statements received by the Panel and thus EE bears the responsibility to examine these issues, to understand how the organisational culture contributed to allegations of sexual harassment, i ntimidation, bullying and silencing.

4.4 Three specific areas of investigation As reflected above, the broad focus of this report has been on the organisational culture that allegedly exists at EE. The following section will briefly highlight some perspectives in respect of the process and findings on the three specific spe cific areas requiring investigation by the Panel.

a) The review of the 2011 inquiry The TOR mandated the 2018 Panel to review the 2011 process investigating sexual harassment allegations against Isaacs, in order to determine whether the process was procedurally or materially flawed. This request from EE infers that EE is concerned about its processes and also about the allegations that continue to be aired about the 2011 process. The parties involved in the 2011 inquiry participated fully and provided substantial documentation to assist the Panel in the review process. It is important to remember that the 2018 TOR did not include any specific allegations against any particular individual involved in the 2011 committee. The questions raised by the Panel in respect of allegations was responded to by members of the 2011 committee, as they sought vindication against allegations of covering-up, conflict of interest and the silencing of potential complaints. The analysis of the 2011 process and findings, through the documentation received, and also the information shared in the interviews, are discussed at length in the Satchwell/Langa report.

Examining whether there were procedural or material concerns, necessitated the examination of various issues by the Panel. These include: whether there was any attempt at a cover-up by the 2011 committee; whether there was silencing of potential victims by some board members; whether the framing of the inquiry was too narrow and if this was done to defeat the purpose of a proper inquiry; whether an adverse inference can be drawn about a conflict of interest interes t due to the composition of the 2011 committee; the role of Hasson and Isaacs in the instigation of the inquiry; the lack of a transparent and inclusive i nquiry process; the impact of the latter latt er point on EE staff, who were privy priv y to rumours, but not to what the organisation was doing to address them; the failure to contact the five people who were named in the Hasson letter; the minimal 24

time spent on this inquiry; and the language used both in the TOR and in conveying the findings. The framing of the 2011 inquiry, the language used and the inquiry parameters set, may be  perceived by some as a starting point of disbelief about any of the allegations that were circulating about Isaacs. The framing language that is used in the email setting out the 2011 TOR 47, may reinforce this interpretation. It includes words such as: ‘rumour , discomfort with the request to examine rumours that involve adult sexual behaviour, peddlers of rumours; harm that an investigation with or without foundation may cause them [women] and the

 It organisation, Isaacs as one of the best leaders of the post-apartheid period in our country. ’  It may indicate a discomfort about investigating a close friend and comrade, based on rumours and Hasson’s statement asking questions about five women that might have some link with the allegations /rumours of sexual harassment by Isaacs. It is understandable that the foundations of such an inquiry would be viewed by some to be tainted, due to the framing of the TOR and the instructions given to the committee. This  perception may not be accurate, but nevertheless it has persisted over the years. The defence that this was a small and new organisation in 2011, that there were no complaints, that the organisation’s policies allowed for a preliminary inquiry by inquiry  by internal people who all knew each other, are all valid arguments. However, the process and the outcome, reinforced the perception that there was no genuine intention to get to the truth through setting up an independent, safe and responsive process. The expectation that I have, is that with hindsight, there would be some level of reflection and acceptance that the inquiry could have been handled differently. The material outcome may have been the same (albeit framed in less unequivocal terms), but the credibility cr edibility of the findings might have been viewed as legitimate if process issues were addressed differently. And we would not be sitting in 2018 reviewing the work of the 2011 committee. The unfortunate reality is that the 2018 Panel report by Satchwell/Langa also reflects a finding of ‘no complainants’. Such outcomes should serve as a learning curve for EE to reflect on mistakes that have been made in its handling of sexual harassment allegations and in the inquiries that it has instigated. EE may wish to review its existing policy in respect of the process for preliminary investigations, and also on the composition of such panels.

47

 Documents relevant to 2011 inquiry received from Prof Ensor et al

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 b) The Mail & Guardian article regarding re garding the Kalk Bay allegation As part of the Terms of Reference the Panel has been requested to investigate the allegations regarding an incident in 2009 involving Isaacs and ‘Jane’, ‘Jane’ , as reported on in the M&G. The Panel’s investigation on this aspect was confined to interviews with Isaacs, Achmat and Geffen (the latter appeared as a witness for Isaacs). The Panel was in possession of the statement made by ‘Jane’ Jane’ which sets which sets out her version of the events of that evening, and also details the relationship that she had with Isaacs prior to the incident. According to a submission by her legal representative, her statement includes details of the nature of their relationship, his unwelcome sexual advances and her detailed account of the sexual assault and attempted rape. The Panel was informed that the client had given consent for the Panel to use her statement to test the evidence of Isaacs. The Panel did not do so, as it had rejected all statements that had been submitted. In correspondence to the WLC dated 29 October, the Panel Pane l extended the opportunity to ‘Jane’ to participate in its investigation relating to the 2009 incident, including affording her, and Isaacs and Achmat, the right to question each other either directly or indirectly through the Panel. ‘Jane’s’ legal representatives representatives rejected this option on behalf of their client and argued that although the TOR makes provision for the investigation into this incident, it was inappropriate for the Panel to do so, as the allegation related to criminal conduct. They also argued that it was ill-advised and irregular for EE to have included it in the TOR and that the Panel should reject clause 12.1.1 as part of its investigation, including making specific findings on sexual assault or attempted rape as referenced in that article.48 The evidence that was produced, both oral and written, by Isaacs, Achmat and Geffen, served as the basis for the findings as reflected in the Satchwell/Langa report. It is important to raise questions about the ethics of an investigative investi gative inquiry process being turned into a criminal triallike process that violated the rights of ‘Jane’ on numerous levels. Some of these include: using the inquiry to conduct a trial about conduct that was alleged to be criminal; sharing of confidential information about the victim; conflating the video and Jewish comment issues in attempts to undermine the credibility of ‘Jane’; the acceptance of prejudicial Facebook messages as ‘evidence’ evidence’ which had no probative value, and which violates the rule a gainst bias; violating the audi alterem  rule, by not testing the evidence of Isaacs and Achmat, against the 48

 WLC submission 9 November 2018.

26

statement that ‘Jane’ had provided; making a finding of plausibility on untested evidence; a nd the stereotyping of alleged victims of sexual assault. The latter manifested in similar terms to the ‘hue and cry rule’ by noting that ‘Jane’ did not run back run  back home immediately after the incident and share details with her roommate Hasson, and she also did not explicitly tell Achmat on Facebook what had happened between her and Isaacs (despite hinting in one message sent two weeks after the alleged incident, that something bad had happened and that she did not want to talk about it and that she had been threatened. Nevertheless, she continued to message Achmat about wanting to meet with him). With regard to the above, in respect of possible encroachment on principles of natural justice, the Brenco case held that to allow the audi alteram partem principle in investigations ‘not only unduly hampers the exercise of the investigating authority, but would seek to transform an investigatory process into an adjudicative process.’ 49 Furthermore, the rule against bias (nemo iudex sua causa rule) requires that there needs to be a clear distinction between the one investigating and the one examining the evidence and making a finding. 50 By dismissing a twostep process in this inquiry, the Panel effectively became both an investigator and an adjudicator - by investigating the matter, examining the evidence before it, then making a finding on fact, and ex exonerating onerating individuals of wrongdoing.

c) Other allegations linking sexual misconduct and Isaacs In my view, and in light of the Panel’s Pa nel’s decision to reject all statements, it became impossible to comply with this investigative mandate, as per t he TOR. As noted above, an examination of the 19 statements may have resulted in the identification of patterns of conduct at EE that reflected an organisational culture of sexual harassment, intimidation and bullying. The assumption, that the statements submitted to the 2018 Panel, did not include information from any of the five women named in the 2011 inquiry, was also a missed opportunity to further interrogate the process and outcome of the 2011 inquiry.

It is important to note that a common modus operandi  of online sexual harassment was reflected in some of the statements that identified experiences of this form of harassment. The understanding of online sexual harassment can include incidents of unknown men attacking

49 50

Chairman, Board of Tariffs and Trade, and others v Brenco and others 2001(4) SA511 (SCA) para 47 and 51 Thanks to Grace Mhlahleli Moyo (UCT) for sharing relevant academic materials.

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women online, or it can be a pattern of sexual harassment using technology, and used by men who are known to the victim. Some of the submissions indicate the latter la tter as the medium through which sexually suggestive messages were sent s ent to women by Isaacs. In terms of item 5.3.1.2 of the Amended Code of Good Practice in the Handling of Sexual Harassment in the Workplace, the sending of sexually explicit text by electronic means, constitutes sexual harassment.

5. Conclusions and Recommendations In light of the issues raised in this report, regarding organisational culture, there are many aspects that need to be addressed. The client, Equal Education, is a social justice organisation that does important educative and accountability work in South Africa. Its constituency of young people from largely economically disadvantaged communities, relies on the services that are provided, and also the broader mission of educating for the exercise of effective citizenship. This gives rise to the obligation on the part of EE, to act with due diligence in exercising democratic, transparent and accountable internal processes which reflect positively on its organisational culture. Thus, the need remains for EE to engage in an internal transformative justice process that is about complainants being seen and heard in a safe and responsive space, which could possibly lead to substantive discussions about organisational culture and practices.

Investigating the broader systemic issues around power, privilege and the patriarchy is crucial for EE, as these factors have contributed to t he negative organisational culture. The allegations of sexual harassment, intimidation, bullying, and silencing reflect an organisational culture that allows for wrongdoing by some individuals, with impunity as the norm. Thus, the current situation of crisis provides an opportunity for EE to work towards a process of healing, and restorative and transformative change, through open and responsive initiatives that allow for truth-telling and reflections on organisational culture. It is important for EE and the broader social justice sector, to substantively address issues of power, privilege, patriarchy, racism, sexism, classism, and social status, including the intersections, among others, in the quest to understand the silences of women whose dignity, privacy, and bodily integrity rights are violated, and to have empathy for their consequent requests for protective and participatory measures. As noted above, it is impossible to convey ‘the truth of wounded memories’  into   into a

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strictly legalistic process and its concomitant demand, and thus it is important for EE to reflect on what a victim centred response and environment entails and how the organisation can work towards this. The procedures adopted have to be appropriate in order to elicit facts that would assist the EE in their effort to reflect on organisational policies, culture and practices.  As part of a reflective and educative process on victim-centred approaches in an inquiry, I would encourage EE to engage with the WLC submissions on this aspect.

In addition, it is important for EE to reflect more substantively on what the organisation hoped to achieve from both the 2011 and also the 2018 inquiry processes. The 2018 Panel has  produced two reports, with this report focusing focusing on broader issues of institutional culture, power and victimisation. These issues are not new, and, due to continuing allegations and accusations concerning the 2011 process and outcome, the organisation included a review of the 2011 inquiry by the 2018 Panel. Setting up the 2018 Panel is an important development for EE, as it conveyed a willingness to introspect on its practices and to address the allegations that continue to be articulated, in public and private spaces. However, the challenges of unaddressed allegations have not been resolved, as reflected in the Ensor, Satchwell/Langa and Manjoo reports.  It is my view that EE needs to initiate a process of dialogue to engage with the 19 complainants and their legal representatives, in order to fully understand the scope of allegations made in the statements. This is in line with the transformative approach that the

complainants seek, in their quest for justice, and also in line with EE’s commitment to treat all complainants with respect and dignity.

For staff, volunteers, equalizers and management, EE should ensure that there is substantive training on policies and implementation processes, including having a system that allows for safe reporting of sexual violence cases. In this regard, regard, the organisation organisation needs needs to undertake undertake an audit to establish whether the policies are sufficient, whether there is substantive knowledge of such policies, whether implementation measures are in place and also to assess whether they work in practice.

The need for certainty of procedures is crucial in inquiry processes. EE may wish to review its its existing policy in respect of the process for preliminary investigations, and also reflect on the composition of such panels as there must be certainty in respect of procedures in place prior to the commencement of an inquiry.  The absence of a safe space for complainants seeking to

voice their experiences, raises concerns about the uncertainty that the complainants could face 29

regarding the exact nature of the process they are participating in, or the procedures that form  part of it. This then impacts on their ability to make informed decisions about their level of  participation.

It is also important for EE to increase the knowledge base on its understanding of sexual harassment, beyond statutory and policy frameworks; to reflect on implementation challenges in respect of organisational policies; to understand how power intersects with status and  privilege and how this t his can lead to abuse of authority, silencing of victims and impunity for  perpetrators; understanding the impact of unresponsive environments which leads le ads to victims not coming forward to report; and avoiding the victimisation and stereotyping of victims. These are issues that have been highlighted in some of the statements received by the Panel and thus  EE bears the responsibility responsibility to examine these issues, to understand how the organisational organisational culture contributed to allegations of sexual harassment, intimidation, bullying and silencing.

The WLC has highlighted a recommendation to the Panel re garding the continued need to keep the identities and the content of the submissions made by their clients confidential . Respecting

and protecting the complainants’ identities complainants’  identities in any subsequent processes that EE may engage in  post the handing over of the report, is crucial.

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