16 days of activism to end violence against women
AIDING AND ABETTING SEXUAL HARASSMENT
CASE 7: Getting away with it, with help from your friends – Malibongwe Ngcai and Basil Mase, Eastern Cape Government
On 1 June 2017 Malibongwe Ngcai started his job as general manager of corporate services in the Eastern Cape Department of Cooperative Governance and Traditional Affairs (COGTA), and Basil Mase the general manager of strategic information management, also in COGTA. Both men had resigned their positions as senior managers in the Eastern Cape Legislature only one day before joining COGTA – so evading any sanctions arising from the disciplinary proceedings against them.
In 2015 an investigation by the Neela Hoosain Commission appointed by the Legislature recommended that action be taken against Ngcai and Mase for demanding sex in exchange for jobs or promotion. But this was not the focus of the disciplinary enquiry conducted during 2016 and 2017. Rather, it was their bringing the Legislature into disrepute by challenging the Commission’s report in court and attempting to prevent implementation of its recommendation that prompted the disciplinary action. While the presiding officer of the legislature’s disciplinary hearing found them guilty of gross dishonesty, gross insubordination and breaching the trust relationship with their former employer, no sanctions could ultimately be ordered as the duo had left the employ of the legislature.
This case raises two issues of policy:
- Resignation and shuffling of staff as strategies to evade disciplinary sanctions
- Appointing officials who have resigned in the midst of disciplinary proceedings to another arm of the state
Gender violence specialist Lisa Vetten points to a similar matter involving an unnamed former senior manager at the national Department of Environmental Affairs: “He too simply resigned in August once allegations of sexual harassment by him began being investigated. In October he was employed at the Council for Scientific and Industrial Research (CSIR) – despite being accused of sexually harassing six junior employees and allegedly raping two women in his unit. Disturbingly, spokesperson for Environmental Affairs, Albi Modise, was reported as claiming that it was ‘not the duty of his department to give references about their former employees to new employers.’”
“A significant policy gap enables this questionable shuffling of staff,” says Sam Waterhouse of the Women and Democracy Initiative. “Staff at legislatures, who are employed in a branch of government and paid with public money, are not governed by any specific law, except the standard labour laws. Interestingly, the regulations to the Municipal Systems Act recognise that some people resign in order to escape the consequences of internal disciplinary action. To address this the Regulations state that the Minister and provincial MEC must be notified if a municipal staff member resigns before the disciplinary hearing is completed. If this clause was applied across the public services and to staff at legislatures, it could assist in monitoring and preventing the movement across different branches of government of people accused of sexual misconduct.”
Said Vivienne Mentor-Lalu of the Women and Democracy Initiative, “The lack of consideration for women’s safety in the workplace shows its low priority. This is rape culture. Women who report sexual violence are sidelined, never to be heard of again, while the men who perpetrate sexual abuse often get to quietly move on and prosper. Is patronage politics at play in these cases?”
Action must be taken
The #NotOurLeaders campaign is calling on the Eastern Cape Department of COGTA to immediately engage in an internal investigation and due diligence exercise with regards to the appointment of Malibongwe Ngcai and Basil Mase. COGTA spokesman Mamnkeli Ngam said in July 2017 that the department “was not aware” of any judgment against the two and thus could not comment on the matter. This is unacceptable.
- The ANC, which leads both the Eastern Cape legislature and the executive department where the two men are now employed, must publicly condemn the evasion of justice by the pair, and strengthen institutional safeguards preventing those guilty of sexual misconduct from taking up senior positions in government.
- Parliament must prioritise policy development to address the gaps in law and policy regarding the conduct and discipline of staff at legislatures and within the public service.
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
Municipal staff are covered by the Municipal Systems Act of 2000, and staff in government departments by the amended Public Service Act of 1994. The regulations to the Public Service Act has a four-year prohibition against re-employing someone in the public service if there was a disciplinary finding that they committed sexual harassment. However, it only applies to people who were found guilty – not those who resigned prior to the finalisation of proceedings. The regulations also require any public service employee to immediately report to the relevant authorities any act which constitutes a contravention of any law (not limited to criminal offences) and any act which is prejudicial to the interests of the public which comes to their attention.
But the Public Service Act only applies specifically to those who work the public service, and not those employed in other spheres of the state. This means there is a gap around the appointments and dismissals of staff of legislatures who have been charged with sexual harassment. Staff employed by the legislatures are covered by labour legislation generally, and any internal policy that may have been developed. #NotOurLeaders has been unable to locate internal policies regarding staff at the legislatures.
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|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.