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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 me to 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 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 analysis 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 us not hearing the victims (by their choice), not discussing fully
the 19 statements received (which we agreed was not evidence – but which we cannot
pretend does not include substance worthy of our attention), and also not having tested
the authenticity of documents produced, especially by Isaacs and Achmat.

I have asserted that this Panel is not a court of law - and 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
quest for ‘vindication’ with the Press Ombud, defamation cases against individuals
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
culture, power/privilege/patriarchy, and also the potential abuse of authority.
Accusations and allegations lead to resignations, and impunity as standard practice
in the social justice sector (LRC, EE and now CALS) and also the public sector (SABC)
– 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 of violence against women in this country, we need to contribute in some
small way to change processes.

Also, I anticipate that there would be little consensus among the panel on the 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 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 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 my view that I should 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 report. 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 – 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 2018 at 11.22am informs my 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 of relevant 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 relating 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 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 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, 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 institutional
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 or innocence, 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’ drives the need to contribute towards an outcome that may
be useful for EE in their discussions going forward. In its 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 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

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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 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 gender-
based 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 not addressed, and impunity becomes the norm. I have been granted
permission to use confidential information and will make mention of some issues raised in the
statements that the Panel received from the complainants, and also from the submissions made
by the Women’s Legal Centre (WLC).6 The section of the report containing the excerpts, has
been shared with me by the complainants’ legal representatives.7 The excerpts do not fully
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.

5 Available at https://equal education.org.za/2018/0712/statement-update-on-doron-isaacs/


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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.

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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 stages, 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 would 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 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 interests 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 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

8 Communications on file with author.


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

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focus of this report hinges on the understanding of an inquiry as a 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 my 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.” 11
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 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 - which was released despite a
plea from the client, to hold off the release and to wait for both reports to be released at the
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, 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 this was
not a criminal trial. Furthermore, functioning within the parameters of the Constitution, the
Panel exercises its powers, functions and procedures in a discretionary manner, but is not bound
in the same way by procedural and evidentiary rules that are applicable to a court.13

11 Communication on file with author.


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

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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....”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 to
regulate its own proceedings in order to fulfil its function’, was mandated to devise a process
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
public notices that were issued. The recognition that a law firm was not necessarily the 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

14 WLC submission dated 20 October 2018 at Para 12


15 Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others 2018 (8) BCLR 921 (CC).
16 Para 14 of TOR.

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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 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 [13 August] does CTH indicate that should our clients
elect to make anonymous and confidential 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 and gathering of information. There should be no strict application of the 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

17 Para. 2 of the letter dated 13 August 2018 sent by CTH to WLCE


18 Para. 3 of the letter dated 13 August 2018
19 Para. 7 of the letter dated 13 August 2018

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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 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 stage, it is only required of the Panel 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.”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
objective and corroborative evidence which could survive the rigours of the law.”21

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 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.

20 WLC submission to Panel dated 19 October 2018


21 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 dismissed 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 TOR23 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, 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.

22 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 asked 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 allegations that she was
privy to. She states that she was removed from participating in an activist school programme
because she spoke out.

___________________________________________________________________

Person C confirms the contents of other statements about sexual harassment allegations at
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.

___________________________________________________________________

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.

__________________________________________________________________

Person E speaks about being influenced by someone in management to reject complaints


from women who came forward to report sexual harassment. Initially, she dismissed rumours
about sexual harassment by numerous women – 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.

____________________________________________________________________

Person F was a victim of sexual harassment. She had a previous consensual relationship with
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.

__________________________________________________________________

Person G falls into a category of women who was not working for EE, but who through her
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 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 against 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 – as part of the intimidation and silencing.

____________________________________________________________________

Person I -speaks about the climate of intimidation and silencing and how after the allegations
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).

________________________________________________________________

Person J refers to the environment of masculinity and how the environment was one where
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.

______________________________________________________________

Person K provides the Panel with insight into how sexually inappropriate relationships were
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 provides insight into grooming and how it 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 spread 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 that exonerates certain 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 two
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, because that is what his conduct amounted to.
__________________________________________________________________

Person N was a staff member during the period when rumours about sexual harassment
were circulating. She speaks of being intimidated when she did not want to 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 inappropriate sexual behaviour at EE that was condoned by
management, and that young people were being put at risk of sexual abuse. When she
raised her concerns, she was subjected to constant bullying by two people in management
and it was made clear that some people in management were not interested 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 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 reflects
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 based 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 in 2011, she was never contacted and she did not know the
scope and extent of that investigation. She feels compelled 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.
_____________________________________________________________________
Person S was not employed at EE but was closely associated with persons who worked at
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” and
included private correspondence between “KK” and the EE staff member. S 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 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
clearly to create a negative impression about “KK” to those working in the social justice
sector.
____________________________________________________________________

The 2018 Panel has been cautioned by Mr Isaacs attorney to the effect that “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 becoming.”
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


25 Communication sent by Mr Haffegee on 16 November 2018

17
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 review of the 2011 inquiry
process; examination of an article 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 person, 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’.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 violated 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.


27 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.

18
disclose incidents of sexual violence, intimidation and bullying - as the organisational culture
was not perceived as one responsive to 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 in 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 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 written 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 to the

30 Minister of Justice v Bechler 1948 3 SA 452 (A)


31 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

Management Services (2011) 32 ILJ 1665 (LC); Mokoena and another v Garden Art (Pty) Ltd and another (2008) 29 ILJ 1196
(LC); and Piliso v Old Mutual Life Assurance Company (SA) Limited and Others (2005) ZALC 107 (LC).

19
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 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.”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 protective 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


34 WLC submission 19 October 2018

20
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
and should be accepted by the Panel… The Panel has no choice but to admit and assess the
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
evidence of wrongdoing and violation of any of EE’s policies and procedures and the Amended
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 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

35WLC submission 19 October 2018


36It 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.

21
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 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 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.”’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 consequences 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).
38 Debbie Dougherty ‘Sexual Harassment as [Dys]Functional Process: A Feminist Standpoint Analysis’ (2001) 29 Journal 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] 5 BALR 529 (MEIBC).

22
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 ‘less 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, including ‘a fear of backlash’, that ‘…a complaint of sexual
harassment against that ‘bright blue­eyed boy/girl’ in the office or a senior
employee/executive, may be a career ending or career limiting move, to be regretted 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 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 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)
44 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.

23
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, intimidation, 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 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 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 inquiry process; the impact of the latter point
on EE staff, who were privy 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
TOR47, 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
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 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 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

25
b) The Mail & Guardian article regarding 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’, 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’ 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 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 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 inquiry process being turned into a criminal trial-
like 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’ which had no probative value, and which violates the rule against 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; and
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 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 two-
step 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 exonerating individuals of wrongdoing.

c) Other allegations linking sexual misconduct and Isaacs


In my view, and in light of the Panel’s decision to reject all statements, it became impossible
to comply with this investigative mandate, as per the 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
Chairman, Board of Tariffs and Trade, and others v Brenco and others 2001(4) SA511 (SCA) para 47 and 51
50
Thanks to Grace Mhlahleli Moyo (UCT) for sharing relevant academic materials.

27
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 as the medium through
which sexually suggestive messages were sent 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 the 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 a

28
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 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, the organisation needs to 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
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

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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 can lead to abuse of authority, silencing of victims and impunity for
perpetrators; understanding the impact of unresponsive environments which leads 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 to examine these issues, to understand how the organisational
culture contributed to allegations of sexual harassment, intimidation, bullying and silencing.

The WLC has highlighted a recommendation to the Panel regarding the continued need to keep
the identities and the content of the submissions made by their clients confidential. Respecting
and protecting the complainants’ identities in any subsequent processes that EE may engage in
post the handing over of the report, is crucial.

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