Findings of Judge Kathy Satchwell and Dr Malose Langa of the Equal Education Appointed Panel of Enquiry to investigate allegations against Doron Isaacs and others and review of the proceedings and outcome of the Equal Education Human Resources subcommittee hearing of 2011 findings on all issues set out in the terms of reference, 27 November 2018
412. On a conspectus of all the evidence received by this Panel, I find:
1. AD TERMS OF REFERENCE 12.1.1: INVESTIGATION OF ALLEGATIONS REGARDING AN INCIDENT IN 2009 WHICH APPEARED IN THE MAIL & GUARDIAN NEWSPAPER OF 18TH MAY 2018:
a. No evidence has been produced to support the existence of any of the allegations regarding an incident in 2009 involving Mr Doron Isaacs which allegation was reported in the Mail & Guardian newspaper of 18th May 2018 and all evidence available to this Panel exonerates Mr Doron Isaacs of any wrongdoing with regard to such allegations.
2. AD TERMS OF REFERENCE 12.1.2: INVESTIGATION OF ANY OTHER SPECIFIC COMPLAINTS OF SEXUAL HARASSMENT OR RELATED MISCONDUCT, INCLUDING IN RESPECT OF OTHERWISE CONSENSUAL RELATIONSHIPS WITHIN THIS PERIOD:
a. No complaints or evidence have been produced to support the existence of any complaints of sexual harassment or related misconduct on the part of Mr Doron Isaacs. In the absence of any such complaint or evidence against him, there is nothing before this Panel of which Mr Isaacs needs to be exonerated.
3. AD TERMS OF REFERENCE 12.1.3: INVESTIGATION WHETHER ISAACS OR ANY OTHER MEMBER, EMPLOYEE OR OFFICE BEARER, INCLUDING ZACKIE ACHMAT, SILENCED OR INTIMIDATED ANY POTENTIAL COMPLAINANTS AGAINST ISAACS:
a. No evidence has been produced to support the existence of any allegation against Mr Achmat that he has silenced or intimidated or attempted to silence or intimidate any potential complainant against Isaacs as was reported in the Mail & Guardian newspaper of 18th May 2018 and all evidence available to this Panel exonerates Mr Achmat of any wrongdoing with regard to such allegations.
b. No evidence has been produced to support the existence of any allegations against Mr Isaacs that he has silenced or intimidated or attempted to silence any potential complainant against himself as was reported in the Mail & Guardian newspaper of 18th May 2018 and all evidence available to this Panel exonerates Mr Isaacs of any wrongdoing with regard to such allegations.
c. There are no other complaints of attempted or completed acts of intimidation or silencing on the part of either Mr Isaacs or Mr Achmat in regard to any potential complainant against Mr Isaacs. Absent any such complaints, there is nothing before this Panel of which Mr Isaacs or Mr Achmat needs to be exonerated.
4. AD TERMS OF REFERENCE 12.2: REVIEW OF THE PROCESS AND FINDINGS OF THE 2011 INVESTIGATION INTO ISAACS’ CONDUCT BY THE THEN BOARD AND THE HUMAN RESOURCES SUBCOMMITTEE. EVALUATION OF THE PROCESS WHICH THE HUMAN RESOURCES SUBCOMMITTEE FOLLOWED AND THE MERITS OF ITS FINDINGS. CONSIDERATION WHETHER OR NOT ANY OF THE MEMBERS OF THE HUMAN RESOURCES SUBCOMMITTEE WAS SUBJECT TO A CONFLICT OF INTERESTS:
a. The process followed by the Human Resources Subcommittee, the Chair of the Board and the Board itself in the 2011 investigation was fair and appropriate in all the circumstances and met the requirements of natural justice and proper procedure.
b. The findings of the Human Resources Subcommittee as endorsed by the then Board was considered, rational and correctly reflected the absence of evidence before them.
c. No member of the Human Resources Subcommittee or the Board allowed any personal knowledge of or connection to or with Mr Isaacs or any other person to compete against or overwhelm their duty to conduct an independent and impartial investigation in his or her capacity as a member of the Human Resources Subcommittee or the Board and thus no person can be found to have subordinated their duty to Equal Education to their personal interests. No conflict of interests was entertained or indulged.
5. AD TERMS OF REFERENCE PARAGRAPH 20.1 – 20.4: RECOMMENDATIONS OF ACTION TO BE TAKEN BY EQUAL EDUCATION IN RESPECT OF IT’S POLICIES, GOVERNANCE SYSTEMS AND PRACTICES IN RELATION TO ANY PERSON OR MATTER CONTAINED WITHIN OR RELEVANT TO THESE TERMS OF REFERENCE:
a. For the reasons set out in detail in this Report, this Panel makes no specific recommendations to Equal Education as an organization on the manner in which it should attempt to ensure a culture in which the dignity of all employees and persons associated with Equal Education receive proper acknowledgment and respect.
413. In terms of Paragraph 19.2 of the Terms of Reference it is directed that this Report be released in full to Equal Education, to Mr Isaacs, Mr Achmat, to Professor Ensor, to Dr Geffen, to Mr Feinberg and Dr Adler and to any person who requests a copy hereof from Equal Education.
***
Text of the full report:
REPORT OF THE EQUAL EDUCATION APPPOINTED PANEL OF ENQUIRY TO INVESTIGATE ALLEGATIONS AGAINST DORON ISAACS AND OTHERS AND REVIEW OF THE PROCEEDINGS AND OUTCOME OF THE EQUAL EDUCATION HUMAN RESOURCES SUBCOMMITTEE HEARING OF 2011
INTRODUCTION
1. Equal Education (‘EE’) is a movement of learners (known as ‘Equalisers’), parents, teachers and community members working for quality and equality in South African education, through analysis, policy development and activism. The origins of the organization in 2008 were in its research work in schools in the working class community of Khayelitsha, Cape Town and it has since drawn attention, including through litigation, to problems required to be tackled in education and government’s failure so to do. Doron Isaacs (‘Isaacs’) was one of the founders and employees of the organization and Zackie Achmat (‘Achmat’) has served on its board and as Chairperson thereof for many years.
2. On 18th May 2018, an article was published by the Mail and Guardian newspaper (‘the M&G’) which, inter alia, reported that the co-founder of Equal Education (‘EE’), Isaacs, “has been repeatedly accused of sexual harassment and [that] senior figures in the organization, including prominent activist Zackie Achmat, have been accused of covering his tracks…” . The M&G also reported that in 2011, Achmat had appointed an investigative committee (‘Human Resources Subcommittee’), comprising Paula Ensor, Sean Feinberg, Michelle Adler and Nathan Geffen, to examine certain “rumours” which investigation cleared Isaacs unconditionally, but that “sources have raised serious questions about the impartiality of the panel, and whether due process was properly followed” (‘Ensor’, ‘Feinberg’, ‘Adler’ and ‘Geffen’).
3. Pursuant to this and the publication of further articles by the M&G , the National Council of EE decided to appoint an independent panel to “investigate allegations of harassment and similar misconduct against Isaacs during his tenure as Treasurer and to review the process and findings of the 2011 investigation into Isaacs’ conduct”.1 The specific Terms of Reference of this Panel are set out in paragraph 12 thereof and will be dealt with chronologically in this Report.
4. The appointed Panel comprises Judge Kathleen Satchwell (now retired from full-time active service in the High Court) as Chairperson, Professor Malose Langa of the Department of Psychology, University of the Witwatersrand and Professor Rashida Manjoo of the Faculty of Law, University of Cape Town.
5. The Terms of Reference prescribed certain time periods for the receipt of complaints, conclusion of the investigation and delivery of the report of the Panel but it has not been possible to comply therewith by reason, inter alia, of the time taken to make contact with and engage with all potential complainants, the opportunity needed by complainants for reflection on the decision to participate herein, the availability of the members of the Panel, the need to transcribe evidence given at hearings and the opportunity for interested parties to respond thereto.
6. The Terms of Reference provided that attorneys Cheadle Thompson and Haysom Inc. (‘CTH’) were to assist EE in dealing with relevant issues including the provision of legal support, services and advice to the Panel of Enquiry. CTH have acted as the secretariat of the Panel in all respects and we would not have been able to function without their intelligent and prompt advice and assistance in multiple areas. The purpose and tone of communications with potential informants and complainants, members of the 2011 Human Resources Subcommittee, officials and staff of EE, Isaacs, Achmat, the Women’s Legal Centre (‘WLC’) and others have all been conducted by CTH at the request of and under the aegis of the Panel.
7. I appreciate that, in many respects, we have been enquiring into events which occurred and feelings experienced almost ten years past and that memories have faded with time and emotions changed as lives have moved on. However, we are grateful to all those who attempted to reconstruct – from those imperfect memories and from the multiplicity of documents available - those issues which this Enquiry is required to consider.
8. The Terms of Reference have granted to this Panel the power to regulate its own proceedings in order to fulfill its functions. We have been specifically enjoined to ensure that the process respects the rights of all concerned. Our powers include: to conduct hearings to receive relevant evidence and information; identify, contact and communicate with any person relevant to the Enquiry; request members/ employees/office bearers of EE to furnish information or provide evidence2. Any information and complaints received by the Panel shall be shared with Isaacs3 who shall be given an opportunity to give evidence and make submissions to the Panel4. All persons involved in these proceedings have been required to preserve confidentiality of both informants and process5.
CRITIQUE OF THE TERMS OF REFERENCE BY INTERESTED PARTIES
9. Counsel who argued on certain legal issues before this Panel made comments regarding the wording or context or adequacy of the Terms of Reference within which we must operate. It has not been necessary to deal with these.
10. However, the WLC (which organization has been greatly involved in both practical assistance and presentation of ideas and views to the Panel) has gone so far as to suggest that this Panel should not even give consideration to the Mail & Guardian article of 18th May and reject the application of clause 12.1.1 of the Terms of Reference to this Panel. Accordingly, I feel I must address their comments and concerns at the outset of this Report.
11. The WLC has always maintained that victims must be at the center of any process, this one included. This requires flexibility in relation to the process embarked upon, the rules governing the process and the end result that is sought. Since, in the view of the WLC (with which view I agree), the justice system is not geared towards a victim centered approach, the WLC has suggested that this Enquiry and this Panel could have been uniquely placed to develop and implement such a victim centered approach.
12. However, the WLC takes the view that the Terms of Reference, devised by Equal Education and within which this Panel must operate, have given to us powers which are “without real consequence for victims”.
13. It is pointed out that, since this is not a criminal trial, no finding of guilt or innocence of any persons against whom allegations or complaints are made is appropriate or competent. The WLC asks “to what end?” would be any finding made by this Panel. A finding of guilty “has no effect, is thus inappropriate, irrelevant and without consequence or authority” – in effect “toothless”. It is also pointed out that this is not a disciplinary hearing in a labour context and again “the consequences of any findings of guilt” would be “superfluous”.
14. The WLC also points out that this Panel “cannot impose any legal sanction or make any legal order in terms of protection against intimidation or duress either during the proceedings or thereafter” which also emphasizes the limitations of the powers of this Panel and the inadequacies of the Terms of Reference.
15. The upshot is, according to the WLC (and including their views concerning possible motivations in the drafting of the Terms of Reference) that the Terms of Reference have burdened those who have wished to come forward with complaints and who have come forward and have protected those against whom complaints are made. Even if the complainants were to subject themselves to cross-examination by those against whom they complain – there would be no consequences to any finding made by the Panel – those findings would be meaningless.
16. In the result and for other reasons to which I shall refer later in this Report, the WLC has explained to the Panel why it is that certain persons who wish to be complainants and who are the subject matter of the Mail & Guardian articles will not be giving evidence and subjecting themselves to any form of testing of themselves or that which they would say.
THE MAIL AND GUARDIAN ARTICLE OF 18 MAY 2018
17. The Terms of Reference to this Enquiry make it quite clear in its preamble to the actual establishment of this Panel that the catalyst thereto was the publication of an article by the Mail & Guardian newspaper on 18th May 2018.
18. The cover page of the 18 May 2018 issue of the Mail and Guardian, features a photograph of Achmat speaking into a megaphone with the words “Zackie Achmat accused of sexual harassment cover-up at NGO” superimposed thereon.
19. Page 3 of the relevant issue of the M&G is headed “NGO’s sexual harassment woes grow” followed by a full face photograph of Isaacs. The article commences “Equal Education’s co-founder Doron Isaacs has been repeatedly accused of sexual harassment, and senior figures in the organization, including prominent activist Zackie Achmat, have been accused of covering his tracks, an investigation by the Mail and Guardian reveals.”
20. The article continues that “this has emerged from interviews with more than a dozen female EE staff members, both current and former…. this includes three women who told the M&G that they were sexually harassed by Isaacs” as also that “Achmat’s name was mentioned as someone who sought to intimidate women against speaking out. Both Isaacs and Achmat deny all the allegations against them.” A further full-face photograph of Achmat appears within the text of the article.
21. On 18th and 20th July, attorneys CTH contacted the identified reporters of this article as also the editor of the M&G to request6 that the journalists make contact with their sources to advise them that this Panel had been established by the National Council of EE in response to the M&G article and to request such complainants to make contact, in confidentiality, with attorneys CTH. At no stage were the journalists of the newspaper requested to reveal their sources. One reporter declined to so assist7 whilst the other journalist and the editor of the M&G did undertake so to do8.
22. Attorneys CTH did receive a number of statements - perhaps in response to the public notice issued by EE itself and perhaps in response to contact made by the M&G journalists. In addition, in the course of its own investigation, the Panel itself made contact with a number of persons as will be discussed below.
23. All the statements received expressed greater or lesser degrees of trauma or distress or simply concern. All requested certain degrees of privacy in relation to their submissions or their participation in this enquiry. The Panel felt that a victim responsive approach should allow for (and indeed arrange) a professional approach mindful of but not focused only on legal niceties and which approach utilized expertise in working sensitively with women in areas such as complaints of and allegations of sexual harassment. Hence, we recommended to all women who made approaches to the Panel that they should approach the WLC. The invaluable contribution of the WLC is dealt with later in this report.
24. Suffice to say that, with and through the assistance of the WLC, some 19 submissions were eventually received – but it must not be thought that all 19 submissions concerned sexual harassment or that all complainants had ever volunteered, interned, worked for or been members of EE. The complaints covered a range of issues – some of which pertained to perceived racial or class bias within EE while others dealt with their hearsay knowledge in later years as to events which occurred in 2011. At the end of the day, the Panel was provided with:
a. three submissions to the effect that those persons felt that they had been manipulated into participating in and exchanging sexual texting over the internet
i.e. ‘sexting’;
b. three submissions by persons who had a consensual, intimate sexual relationship which they subsequently considered to have been manipulative in both design and content;
c. three submissions by persons who felt that persons within EE had attempted to stifle exposure of the true state of activities or organizational culture9.
d. The balance did not concern matters within our Terms of Reference but issues ranging from differential treatment between staff and ‘Equalisers’ through to reception given by management to proposed community interventions.
25. There was some overlap in these complaints which means that it should not be assumed that it was nine persons who submitted complaints about sexual harassment or intimidation/cover-up of complaints10 but a fewer number.
TERMS OF REFERENCE PARAGRAPH 12.1.1 - ALLEGATIONS REGARDNG AN INCIDENT IN 2009 AS REPORTED IN THE MAIL & GUARDIAN
The Mail and Guardian Article
26. Paragraph 12.1.1 of the Terms of Reference of this Panel require us specifically to investigate “the allegations regarding an incident in 2009 as reported in the M&G on 18 May 2018.” Those allegations are reported as follows:
“The most serious allegation came from Jane – not her real name, although her identity is known to the M&G – who alleged that Isaacs made a lot of untoward remarks to me and sent me sexually suggestive texts, asking what I was wearing and if I could touch myself. She was working on a project in the activism sphere at the time. This behavior culminated in Isaacs attempting to force himself on her, she claimed, “After dinner one night, he took me to a historical stone house on the top of Kalk Bay where he started to kiss me forcefully and tried to take my pants off. He is not a big guy but I still had to fight him off. He did persist for a bit, then was offended because I rejected him,” she said.
Jane said after she confided in someone about the incident, Isaacs came to her house and threatened her. “He said if I dare tell anybody else I would never work in activism again in South Africa. I told him I was not scared of his threats and it seemed like I was the first person to stand up to him,” she said.”
27. It must be made clear that it is appreciated that this Panel is concerned with a newspaper article compiled and created by newspaper reporters. ‘Jane’ is not necessarily the author of each and every word as contained in the M&G article nor is she responsible for the chronological placement of the incident as it is related. Finally, it may appear that ‘Jane’ used specific words to the reporters because certain wording is placed in quotation marks but we have had no confirmation from her that that such is correct.
Process
28. Isaacs gave evidence to this enquiry 11 and responded to questioning from each member of the Panel.
29. ‘Jane’ had already indicated to the Panel in her capacity as a complainant that she did not wish her participation to be disclosed to Isaacs or his legal representatives, that she would not provide oral evidence or be subject to cross-examination by the Panel, that the Panel could use information from her statement to pose questions to Isaacs while ensuring that her confidentiality was protected and that she was willing to answer questions but only in writing from the Panel or interested parties through her legal representative.
30. In the interests of transparency and by reason of its expertise and knowledge of this matter through representation of certain complainants, the Panel invited the WLC to attend and to participate in the hearing but the WLC understandably felt it would be inappropriate to do so whilst its clients were insisting on non-disclosure and limited participation.
Isaacs’ Evidence
31. Isaacs explained that ‘Jane’12 was a friend of his younger brother and that she had replaced his brother in a house-share with Joey Hasson when his brother moved out and Isaacs and Jane had come to know each other in social circles during 2009. ‘Jane’ had studied film making but had never had any involvement in or association with EE.
Although, both Isaacs and ‘Jane’ were in committed relationships with named persons, they engaged in an initially flirtatious and then romantic but not sexual relationship during 2009. Both were in their mid-twenties with ‘Jane’ about two years younger than Isaacs.
32. Since both Isaacs and ‘Jane’ were emotionally committed to other persons, it was difficult to find private times and places to be with each other without revealing their flirtation to their partners. They agreed to meet in Kalk Bay as an area where they would be unlikely to meet their partners. Isaacs, living in Woodstock, drove to Green Point where he parked his car and the two friends (Isaacs and ‘Jane’) drove in Jane’s motor car to a restaurant in Kalk Bay. After dinner, the two friends again drove in ‘Jane’s vehicle to a guesthouse where Isaacs had some time earlier made a booking for the evening13.
33. It was never intended by either Isaacs or ‘Jane’ that they would spend the night at the guesthouse – after all they were both in committed relationships, were expected home and could not spend a night away.
34. On arrival at the guesthouse in Kalk Bay, they were escorted to the room which had been reserved. They began to kiss, got on to the bed, kissed some more, lay down together and then decided to end the evening.
35. Isaacs’ understanding of the events of this evening is that both he and ‘Jane’ had wanted to be in a private place to relax but that the situation was complex since each was concerned with the ethics of infidelity and had a fear of being caught by their partners. These concerns explained, for himself, the absence of a consummated sexual relationship.
36. Isaacs was adamant that ‘Jane’ never pushed him away or told him to stop any action of any sort.
37. Isaacs appreciated that he could not fully know and could not deny whatever ‘Jane’s’ feelings or experience were then in 2009 or now as revealed in 2018 – although he had assumed that they were of one mind on this issue and never had any disagreement or antagonism over the events of this evening.
38. The evening was over. The pair left Kalk Bay in ‘Jane’s’ vehicle and Isaacs remembers that she dropped him off at his car in Green Point and he kissed her goodbye through the window of her car.
39. Although Isaacs and ‘Jane’ continued to be friends, Isaacs felt that he had learnt from this evening’s experience that it was going to be too complicated to continue with any romance with ‘Jane’ and their association would not develop into a comfortable relationship. They had both had this desire to be alone with each other but, now that this had happened and had advanced no further, it was time, he felt, to get back to reality.
40. Isaacs and Jane interacted amicably after this late October 2009 event in Kalk Bay. As evidence thereof, Isaacs produced a series of emails of 14 January 2010, in which they enquired about each other’s health and ‘Jane’ commented that “my phone broke during my trip, so I no longer have your number. How you are doing?”14 ‘Jane” also informed Achmat on 11th November 2009 per Facebook message that she was reading Abel’s book “courtesy of Doron”15.
41. At some point in 2010, ‘Jane’ did participate in an event at the Bookery (then run by EE) which was a readathon over a period of 24 hours and in which Isaacs was also involved.
42. However, there was an interaction between a number of persons involved in a project known as Open Shuhada Street and which involved ‘Jane’ which came to an unpleasant and unresolved juncture the following year - during 2010. Isaacs was just one of a group of people involved in this project16 and ‘Jane’ was to be the filmmaker.
43. Young men who were conscientious objectors from military service in Israel came to South Africa; they were feted in South Africa and it was thought that ‘Jane’ could make a documentary about these young men.
a. On 30th September 2009, Isaacs emailed ‘Jane’ thanking her for coming on board, saying that he would speak to the camera guys about “these Israeli kids”, asking her about cost estimates, sound, editing, burning 50 CDs.17 On 22nd October 2009, Isaacs gmailed a proposed voice over for the documentary to ‘Jane’ who said she would read through and that they could do further work if needed.18
b. On 13th October 2009, Daniel Mackintosh sent a gmail to ‘Jane’ confirming “done” which appears to have meant that he had satisfactorily concluded transfer of R6395.00 to ‘Jane’s’ bank account at Standard Bank on 10th October. The context expressed in Mackintosh’s gmail is that “I think that your documentary is going to be really fascinating and capture/explore issues that we have not managed to properly.”19
c. However, during 2010 it began to appear to everyone involved that ‘Jane’ was not actually producing the documentary as arranged and for which she had been paid for certain costs.
d. On 3rd April 2010, Nathan Geffen gmailed a number of people that it was necessary to “explain to her that we have to report to our funders and produce a video to them. Either she needs to show us the completed video by 19 April or she has to return the money and footage.”20 [my underlining]
e. On 17th May 2010 MacKintosh gmailed “no energy to help or advise but my feeling is that we should go ahead. But she will need management. This is a really important video. And the contract with the editor should not be through her.” [my underlining]21
f. On the same date, 27th May 2010, Geffen gmailed the larger group “no further business with her. We have no budget and she is not reliable. Do we have the footage back from her yet? If we are to raise money to do this properly, I would rather we gave the footage to CMT and asked them to do it.” [my underlining]22
g. Isaacs told the Panel that ‘Jane’ neither produced the film nor returned the funds which had been paid to her. He confronted her personally in 2010 and remembers he used the word “corruption” in connection with her behavior. This made her angry. He argued that she could not take the money, fail to do the work and then not return the money and if she behaved like this then people in civil society would not want to work with her.
44. Isaacs told the Panel that subsequent to this non-production of the documentary and non- refund of the monies, he had felt “a little frosty” from his side towards ‘Jane’. because he was annoyed that the money was never returned, and the video never completed. However, in 2017 he knew that she had attended a party at his house organized by his tenant/friend who would have proferred the invitation to her.
45. Although Isaacs was clear to the Panel in the nature of his and ‘Jane’s’ relationship and their reasons for going to dinner in Kalk Bay in her vehicle and then to the guesthouse as well as the reason for not sexually consummating their ‘romance’ (as he described it), he offered to the Panel the possibility that ‘Jane’ had a different subjective experience of their evening together. However, he was adamant that there was no pushing or force of any sort on the part of either of them.
46. Isaacs informed the Panel that he had never, whilst a management employee, had a relationship with an EE ‘Equaliser’ or member of staff but had done so with two volunteers after their stints as volunteer was concluded. Isaacs also informed the Panel that he had never, whilst Treasurer, had a relationship with an ‘Equaliser’ or a volunteer but had had a romance with an EE staff member in 2016. This relationship came to a close because, although Isaacs (who lived in Johannesburg at that time) only attended National Council meetings three times per annum and went into the EE office perhaps once per month, he thought the existence of the relationship might become complicated. As it was, that staff member left the organization for further studies, this Panel has been in touch with her and she has made no complaint of any sort against Isaacs.
The approach taken by ‘Jane’ as expressed through the WLC
47. The WLC takes the view that the version as to what happened to ‘Jane’ would amount to criminal offences and that ‘Jane’ “remains undecided about how she wants to pursue what has happened to her.” Further, the WLC has submitted that it is “wholly inappropriate” for the Panel to investigate this incident and that “it was ill-advised and irregular for EE to have included it in the Terms of Reference”. ‘Jane’ wishes neither for this Enquiry nor for this Panel to conduct a trial. It is her view that “as the victim she has the right to make that determination … when ready to confront it to do so.”
48. It is the view of the WLC that the Panel should reject clause 12.1.1 of its investigation including making any findings on that which is referenced in the M&G article. Furthermore, the WLC believes that it is “not suitable to engage with this issue as it forms part of proceedings now before the Press Council”.
49. Accordingly, ‘Jane’, for a number of reasons, has elected not to participate in these proceedings, present her version of events, confirm or elaborate or clarify the version as presented in the Mail & Guardian on 18th May 2018, challenge the version of Isaacs and be challenged on her version by Isaacs.
Conclusion
50. It is my view that:
a. Isaacs version is highly plausible.
b. We know from other evidence that Isaacs was, at the time, in a committed relationship with a named person and from ‘Jane’s’ emails to Achmat that she too was in a committed relationship. This would justify and explain the dinner in Kalk Bay at some distance from their usual haunts and the reservation at the guesthouse which was not used for an overnight assignation.
c. If anything had happened in October 2009 while ‘Jane’ was sharing a house with Joey Hasson, one would expect that Hasson would have mentioned her name or asked questions about her in his complaint to Achmat in 2011 (which form the subject matter of paragraph 2.2 of the Terms of Reference of this Enquiry). In that complaint he named other persons whom he did not know or of whom he had only heard. He repeated hearsay allegations regarding sexting with one person and made no allegations but ‘asked questions’ about four others persons (two of whom he had heard from a former girlfriend of Isaacs). He made no mention and asked no questions about ‘Jane’ with whom he had been sharing a house!
d. Events in 2010 concerning the failure by ‘Jane’ to produce the video and refund money from donors, coupled with Isaacs’ accusation made to her that this constituted ‘corruption’ could have motivated this allegation in the Mail & Guardian. Several persons were copied into the gmails concerning the non- production of the documentary with the resulting general grievance and disappointment. Facebook message communication with and from Achmat confirms this disappointment. However, it appears that Isaacs was at least one person who confronted her directly. Achmat did so somewhat more gently later in 2010.
e. Achmat also gave evidence and relied upon exchange of Facebook messages between ‘Jane’ and himself. Those documents speak for themselves. They do not support any suggestion of an unwelcome sexual interaction between Isaacs and ‘Jane’, report by ‘Jane’ to Achmat, harsh rejection by Achmat to ‘Jane’. In short, Achmat’s own evidence, while it cannot support the version of Isaacs since Achmat was in London in October and in New York in 2010, does gainsay the version of ‘Jane’ as reported in the Mail & Guardian.
51. The allegations set out in the Mail & Guardian are not necessarily the words of ‘Jane’ and she cannot be held to the veracity of everything written by one or more journalists. However, the proceedings before the Panel and the evidence of Isaacs has been recorded and made available to both ‘Jane’ and the WLC to enable ‘Jane’ to respond and challenge Isaacs should she so wish. Jane has elected not to present herself before the Panel and respond to Isaacs’ version. She has chosen not to be subjected to any form of testing of the allegations as they appear in the M&G or of the response and denial given by Isaacs23.
52. Isaac’s version of events is therefore unchallenged and partially corroborated in certain significant respects.
TERMS OF REFERENCE PARAGRAPH 12.1.3 - SILENCING OR INTIMIDATION OF POTENTIAL COMPLAINANTS AGAINST ISAACS BY ACHMAT OR ANY OTHER PERSON
53. Paragraph 12.1.3 of the Terms of Reference requires the Panel to investigate “whether Isaacs or any other member, employee or office bearer, including Zackie Achmat, silenced or intimidated any potential complainants against Isaacs.”
The Mail and Guardian Article
54. At this stage of the Report, I do not propose to deal with the status or value of any of the submissions or complaints which the Panel may have received but simply to deal with the contents of the Mail & Guardian article of 18th May 2018 insofar as it refers to Achmat.
55. That article states that “senior figures in the organization, including prominent activist
Zackie Achmat, have been accused of covering his [Isaacs] tracks”.
56. Specifically, the article alleges that:
“After the alleged Kalk Bay incident, Jane’s next step was to call Zackie Achmat, one of South Africa’s most prominent activists, who was chair of Equal Education’s board at the time. According to her account, Achmat told her she had brought the harassment on herself because she “wore too much make-up”.
“He, [Achmat] told me that I was a broken person and said I needed to pull myself together,” she said.
Achmat denies saying any of this. “I would never tell a person that what they wear or their make-up is responsible for how men should behave towards them.”
57. Further, the article goes on to read:
“Zackie Achmat’s name came up repeatedly in the context of covering up Isaac’s alleged harassment. Two women, including Jane, claimed that they were contacted and threatened by Achmat directly. There was a perspective from the other sources that Achmat would intervene on Doron’s behalf. Zackie does protect Doron. There was a fear of reprisals on Doron’s behalf by Zackie,” said one woman.
Process
Achmat strongly denies these allegations. “I have never threatened anyone who wished to file a complaint of sexual or other misconduct. Have I spoken firmly to people who have spread rumours or allegations of sexual or other misconduct without evidence as fact or faith? Most definitely.”
58. Achmat gave evidence24 and responded to questioning from each member of the Panel.
59. As already stated above, ‘Jane’ had previously indicated to the Panel in her capacity as a complainant that she did not wish her participation in this Enquiry to be disclosed, that she would not provide oral evidence or be subject to cross examination by the Panel, that the Panel could use information from her statement to pose questions to Achmat while ensuring that her confidentiality was protected and that she was willing to answer questions but only in writing from the Panel or interested parties through her legal representative.
60. For the same reasons as set out in relation to the process in the hearing of the evidence of Isaacs, the Panel invited the WLC to attend and to participate in the hearing but understandably the WLC felt it would be inappropriate to do so whilst its clients were insisting on non-disclosure and limited participation25.
Achmat’s Evidence
61. Achmat told the Panel that he had known ‘Jane’ since she was a child, was extremely close to her father and considered both of them to be part of a family circle.
62. Achmat had been in London on a fellowship for the period October to December 2009 and then in New York on the same fellowship from February to June 2010. He made no mention of having seen ‘Jane’ at all during this period.
63. Achmat had no gmail records but he did tender a bundle of Facebook messages from the period 2007 to 2010 involving ‘Jane’26. On the assumption that the alleged incident occurred in and around 27 October 2009, Achmat has found and produced 30 Facebook messages between ‘Jane’ and himself over the period June 2007 and August 2010. The purpose of these messages was to show the chronology of communication and the content thereof.
64. Over the period 1st June 2007 until shortly after November 2009, these messages were mainly ‘Jane’ attempting to make contact with or meet up with Achmat who appears to have been fairly non-responsive to her approaches.
65. On 11 November 2009, approximately two weeks after the alleged ‘Kalk Bay Incident’ allegedly involving Doron Isaacs ‘Jane’ wrote to Achmat:
“Z, please send me a list of must read books. Considering options for next year among them law. I’m reading Abel at the moment courtesy of Doron. Lack of direction compounded by the rain is making me depressed. Lov.A. [my underlining]
66. Achmat commented that this was the first communication to him after the alleged Kalk Bay incident (October 2009) of which there is no mention. There is no mention of Isaacs in a negative context – indeed the reference to the book which Jane was reading27 “courtesy of Doron” suggests that Isaacs had done ‘Jane’ a favour or good deed in referring her to or lending her the named book. There is no call for help whatsoever and no reference to any help which had previously been sought as claimed in the M&G article.
67. In January and over March 2010, ‘Jane’ again initiated contact with Achmat stating that she was surprised and hurt at his lack of response to “my many messages” but that she appreciated that he was probably busy.
68. Achmat told the Panel that he really had no desire to engage with ‘Jane’ at this stage. He was busy and living in New York. He felt his relationship with ‘Jane’ had broken down because of her failure to deliver work she had promised to do for Open Shuhada Street project after accepting payment for equipment to do so – in that she had accepted money for hiring of equipment for a documentary which had not been made about Israeli conscientious objectors. In addition he had been told by a third party that ‘Jane’ had made a comment to the effect that she was “tired of Jewish intellectuals in Equal Education”. He was “horrified” at this comment because it suggested she was expressing both anti- Semitic views to which he was and remains opposed and anti-intellectual views while he considered and considers intellectual work to be of importance. Basically, Achmat felt that ‘Jane’ had “broken trust” and he was busy.
69. Eventually on 17th March 2010, Achmat sent a Facebook message to ‘Jane’. This runs to over an A4 page and so I quote only selective extracts therefrom:
“….. I wanted to sit down and have a serious discussion with you as a friend. However, I will not be able to see you until I get back early June 2010 so I will say here what I would have preferred to say in person to you as a friend.
First, I was shocked and disappointed to hear that you had referred to the
“Jewish intellectuals” of EE who have “no idea of the working class”. The
people I assumed you referred to I regard as some of the best comrades in
today’s working class movement. [my underlining]
Second, the comment speaks of a discomfort with Jewishness and it speaks of an anti-intellectualism that I do not believe is in your character. [my underlining]
Third, we are all middle-class…. Like you I am privileged…. Middle-class [status] can always be abused by anyone who wishes to slander an activist or friend.
Fourth, I want you to find work, to succeed because you are a strong, intelligent person. We all face the pain of our past, no matter how privileged we are. There are many ways to deal with that pain and I have tried in at least two ways; first, to use my privilege in struggle and seconds, to address my depression, fears and anxieties through therapy and medication. Both helped a little but above all my ready and friends saw me through it all.
I fear that behind your make-up there is pain and security – do not let it stop you from earning a living (please help SACTWU/Cosatu come into the 21th Century with media), do not let it stop you from becoming an activist leader. [my underlining]
I wanted to say this because writing it sounds harsh but you are a friend and you deserve honesty above insincerity.
70. Whilst some might try to place a gendered meaning upon Achmat’s reference to ‘Jane’s’ “make up” as referring to facial cosmetics, I can find no basis whatsoever in any putative attempt at such reading. “Make-up” does not only refer to mascara, eye shadow, lipstick and powder. One must always look at context to ascertain which of the many other meanings is intended and appropriate in the particular situation28.
71. ‘Jane’ had previously written that she was “depressed” which she had written was, in part, occasioned by her “lack of direction”29. Achmat now referred to the “pain and unease” which he feared was behind her “make-up” which is clearly a reference to the emotional and psychological insecurities which he was anxious lay behind her presentation of self30. Achmat told the Panel that he was concerned because he knew that ‘Jane’ was struggling to find a purpose in life and she had previously written of being “depressed” ( in her message of 11th November) and that her comment about ‘Jewish intellectuals’ may have been used by her as an excuse to avoid her addressing her failure to complete the film project.
72. The use of the word ‘make-up’ in the context of Achmat’s message could refer to the personal composition of ‘Jane’ as a person presenting a façade of one who could become “an activist leader” but which outcome was prevented by reason of the concealed “pain and insecurity” hidden behind the façade presented. It could refer to the disguise of the competent filmmaker with ambition and looking for direction which concealed that ”pain and insecurity”. Achmat might have been referring to the young woman in her mid- twenties whom he had known as a child but whose intrinsic “make-up” of inborn nature and character and temperament and composition as a person contained “pain and insecurity”.
73. Since no mention had been made at this time by ‘Jane’ to Achmat of any untoward or distressing incident with any person whatsoever, let alone Isaacs, it is difficult to see how any reading could be made that Achmat was telling ‘Jane’ that “she had brought the harassment on herself because she wore too much make-up”. ‘Jane’ had never mentioned in any Facebook message that there had been any form of sexual or other harassment or threat by Isaacs. Achmat’s use of this word “make-up” can only be in the context as found in his lengthy communication to her and his concerns set out therein because there had been no mention by ‘Jane’ to him of any event to which he could have intended or made the response as now alleged by her through the Mail & Guardian.
74. On 24th March 2010 ‘Jane’ responded at some length.:
“Firstly, …. I have always seen you as an important rock, part of that extended family…. I took a long time to respond because I was equally shocked that you would believe this and hold it to be true without asking me if this was indeed what I said….. What I did question was whether people who do come from a comfortable middle class….. judge more harshly than those who don’t fit the traditional “activist” mould. It was a question one night with Yana and Richard. And was a question for discussion rather than a statement. [my underlining]
Secondly, you are not aware of the complexities that exist in which this was taken out of context. There have been personal issues between me and Doron, which I don’t want to go into, because he has asked me to keep it private. And I hope that you respect this. It wasn’t very pretty, and there were threats involved from his side. I feel whether true or not, that I got sidelined quite badly because of this. This may have something to do with how my question got taken out of context. Good comrades may not be so moral in all spheres. Life is complex like this and not everything can be judged harshly as black and white. … [my underlining]
Thirdly, it took me a long time to overcome serious issues that stemmed from an abusive childhood. This I need to do in my twenties when I had unconditional support from Irshad. Also, I was blessed to have some financial support from Irshad that allowed me time and space to work through what had become debilitating pain. ….
Fourth, liberation means that as a woman I am not forced to change my surname or wear not make-up or be in hijab. It means the freedom to choose how to I want to express myself. If I love wearing lipstick or eyeliner that I should feel absolutely free to do so. And if I choose not to, then I wouldn’t be frowned upon. … It is about giving people the freedom to choose how to be, and not yoking them to a new aesthetic. My mother wore lipstick and perfume and big African beads. Ruth First had her hair religious straightened once a week and had dresses tailored especially for her. This didn’t mean that either of them were insecure or any less of an activist. I have an aesthetic that is different from yours. I love well cut clothes, make-up. This doesn’t an inch take away from the pain I feel at seeing the unfairness that exists around me or my ability to make a change in this world. [my underlining]
Lastly, I am studying law at UCT. ……. I look forward to seeing you in June.
…..” [my underlining]
75. Achmat told the Panel that he did not know what “personal issues” existed between ‘Jane’ and Isaacs. He assumed this related to the “job not done”. His own feeling was that people ought to do what they said they would do and if they did not do so they should then apologise. Achmat said that he could only think that these “personal issues” also involved the conversation with Cunningham about “Jewish intellectuals” and which referred to other persons such as Geffen, Strauss, Barsel etc.
76. ‘Jane’ comments that Achmat was not aware “of the complexities that exist in which this was taken out of context” suggesting that there were difficulties and intricacies within which “this” (i.e. her question/comment re “Jewish intellectuals”) was situate or removed from its context. Some abstruseness of an unknown nature had coloured that which she had said about “Jewish intellectuals”.
77. But then ‘Jane’ transferred the complexity of that which she had said into unknown and private “personal issues” between herself and Isaacs. Inexplicably these personal issues may have “something to do with how my question got taken out of context” but she has already explained that her comment was made/ question was asked in the presence of persons called Yana and Richard and no mention was made of Isaacs being present or involved at all or party to this issue at all.
78. Achmat explained that when he read the words “liberation as a woman” he had a smile on his face because he strongly believes that people should choose their personal presentation and would have liked to have been able to do so for himself. As a gay man, he would have liked to dress up more – perhaps in a more flamboyant manner.
79. Achmat explained that he only became aware in 2018 that the relationship between ‘Jane’ and Isaacs was anything more than a friendship. In 2010, he had no idea to what she was referring other than the film making debacle or the quoted anti-Semitic and anti- intellectual comment. In any case, ‘Jane’, made no mention of any such personal relationship between herself and Isaacs but merely said in March 2010 there were “personal issues” and expressly asked Achmat to “respect” the request for privacy. Which he did.
80. On reading through this correspondence I note the following in relation to the article in the Mail and Guardian:
a. The Mail and Guardian article reports that …….. “After the alleged Kalk Bay incident, Jane’s next step was to call Zackie Achmat….” But these Facebook messages disclose the exact opposite. If the incident allegedly happened in late October 2009/early November 2009 when Achmat was in London, ‘Jane’ did not see him until he returned to South Africa in June the following year. She did not make internet contact with him until March 2010. She messaged him but said nothing about this alleged incident with Isaacs. So calling Achmat was not her “next step”.
b. Achmat had already noted ‘Jane’s’ own reference to being “depressed” on 11th November 2009 and the reason she suggested therefor and when he eventually wrote to her on 17th March 2010 he explained how he had tackled his own depression. This reference to “make-up hiding ‘fears and insecurities” on 17th March 2010 was thus before there was any mention or suggestion of any harassment of ‘Jane’ by anyone at all. It is therefore inexplicable that Achmat could have intended to or made the statements as is alleged in the Mail & Guardian article because there was no complaint made by ‘Jane’ to which Achmat could have so harshly responded.
c. When Jane replied on 24th in March 2010, she then wrote no more than that there had been undisclosed “personal issues” between herself and Isaacs which she was keeping private and which privacy she asked Achmat to respect. She made no complaint to him of sexual harassment as is alleged in the Mail & Guardian article.
d. Insofar as ‘Jane’ writes, in the second paragraph of her message of 24th March, that “it wasn’t very pretty and there were threats from his side”, it is worth noting that this sentence is preceded and followed by reference to ‘Jane’s’ comment/question being taken (according to her) “out of context”. Achmat told the Panel that he had no idea of the content of such threats but that he understood the whole issue to be in the context of the failure to produce work for which ‘Jane’ had been paid. I would have thought it was also possible that she was placing these “personal issues” in the context of the ‘Jewish intellectual’ comment/question which she had posed because that is subject matter which both preceded and succeeded her reference to any threat. There is no reference to any of this background or personal animus in the Mail & Guardian article.
e. Achmat returned to South Africa in June 2010. He did not see ‘Jane’ nor make contact with her. He was pre-occupied with personal tragedies and distress ranging from the death of a close friend to his own divorce. There is no reason why he should have sought out ‘Jane’ for any reason.
81. Yet, rather like her plaintive messages from 2007 onwards, ‘Jane’ wrote on 13th August 2010:
“we were going to meet when you got back to SA. Now, we are no longer fb friends. What has happened? I certainly hope no misunderstanding has caused so big a rift ….”
And again on 21st August 2010
“why is it okay to cut me out so completely without reason and then continue to ignore my requests to see you/chat/understand? Do you think its alright to hurt me?
82. ‘Jane’ expresses surprise and dismay at the lack of contact during 2010. This does not support her recollection as told to the M&G in 2018 that she approached Achmat for help after a disturbing sexual incident accompanied with threats and that he brushed her off with accusations that she had brought harassment upon herself because of her wearing of too much cosmetics. Certainly, my reading of ‘Jane’s’ own messages is that she cannot imagine what “misunderstanding” there may be, that she does not know why she and Achmat cannot spend time together, that she is wanting Achmat for a friend (Facebook or otherwise). She is questioning the existence and content of a possible “misunderstanding” but apparently has no recollection of his harsh response to her revelation about Isaacs. Her messages do not support the Mail & Guardian version of his abandonment and blaming of her after she turned to him for help.
The approach taken by ‘Jane’ as expressed through the WLC
83. The views of ‘Jane’ as indicated to the Panel by the WLC, on her behalf, insofar as that which has been reported in the Mail & Guardian concerning Isaacs, presumably also applies in relation to Achmat.
84. Accordingly, as I set out above ‘Jane’ did not confirm or elaborate or clarify that which is reported in the Mail & Guardian concerning Achmat, tell the Panel her version of events, challenge Achmat’s version, allow Achmat to hear her version and challenge or test her thereon.
Conclusion
85. It is my view is that:
a. The chronology and content of the Facebook messages do not, in any way, support the allegations as set out in the Mail and Guardian article.
i. ‘Jane’ did not, as her “next step” call upon Achmat who was in London. If the alleged incident in Kalk Bay happened at the end of October or even early in November 2009, she messaged Achmat on 11th November without any reference to any harassment or misconduct on the part of Isaacs, referred to a book she was reading “courtesy of Doron” which is a validation of Isaacs, made no reference to Achmat’s alleged brushing off of her complaint with the response that she had brought this harassment upon herself by “wearing too much make-up”.
ii. After further attempting to make friendly contact on friendly issues with Achmat, he responded to her pursuit of him with a rather advisory admonition about what he had heard she had said to persons other than Isaacs about “Jewish intellectuals” and a similarly paternal encouragement about her future. I can only but read his reference to the “pain and security” which he feared lay behind her “make-up” in the context of his detailed response to her earlier advice that she was “depressed” as referring to the fear and insecurity (which she acknowledged in the next message to have existed by reference to her abusive childhood) which he believed and regretted might lie behind her façade or disguise of film maker and activist.
iii. ‘Jane’s response to Achmat was to attempt to explain away what Achmat understood to be anti-Semitic and anti-intellectual comments as a “question” which had been taken out of context. In the midst of explaining away her discussion about “Jewish intellectuals”, she inserts a reference to “personal issues between me and Doron” but does not elucidate in any way on what these issues might be. She went on to say that she did not want to “go into” these issues because Isaacs had “asked me to keep it private”. Achmat is left with no knowledge about what has happened at all and the privacy is a request not a demand from Isaacs – an “ask”. Achmat is further asked to “respect this [ask]for privacy”. Nothing in this communication suggests or intimates sexual harassment or misconduct in any way whatsoever.
iv. Insofar as ‘Jane’ writes that “it wasn’t very pretty and there were threats involved from his side” there is still no indication of sexual harassment or other misconduct or the nature of the “threats”. By the beginning of April 2010, there were already gmails which were circulating from persons other than Isaacs about how ‘Jane’ had let a group down in failing to produce a documentary or refund the money she had been paid. Isaacs did not give a date as to when he had confronted her and pointed out the obvious – which was that she would not again be asked to do work for which donors/funder paid if she behaved like this. Achmat did not say what he believed the “threats” to be but he did know about the incomplete project and ‘Jane’ went on to say that “I feel whether true or not, that I got sidelined quite badly because of this” which suggests that the critical response to her non-production of the documentary had had unfortunate activist or professional consequences for herself. In fact, she compounds that impression by continuing “[t]his may have something to do with how my question got taken out of context”. Since it was not Isaacs, but persons identified as Yana and Richard, to whom she had made the comment/question, her being “sidelined quite badly” because of or in relation to the “Jewish intellectuals” again gives no indication of any misconduct by Isaacs.
v. ‘Jane’s’ commentary on “liberation” meaning that she, as a woman, has “the freedom to choose how I want to express myself gives no indication whatsoever that this is a riposte to a cruel remark by Achmat that she brought harassment upon herself by wearing too much make up. In fact, it is not offered as a response to anything which is named or which is identified in this lengthy Facebook message other than that her appreciation of personal care “doesn’t take an inch away from the pain I feel at seeing the unfairness that exists around me or my ability to make a change in this world.” Her polemic on freedom for women to express themselves is not, in any way, related by her to anything said or written by Achmat. In any event, the sequencing of messages is such that any reference by Achmat to her ‘make up’ concealing fear or insecurity precedes her now unrevealed personal issues with Isaacs.
vi. ‘Janes’ further messages to Achmat make no reference to any complaint made by her to which he had responded brusquely or harshly or in an accusatory fashion. Instead she wants to make contact and never suggests that he and she need to work through any such abusive interaction.
b. Achmat’s version is, on what is available, the only plausible version31. In fact, Achmat presented the position of ‘Jane’ far more gently than has my analysis.
c. As I have already remarked, the allegations set out in the Mail & Guardian are not necessarily the words of ‘Jane’ and she cannot be held to the veracity of everything written by one or more journalists. However, the proceedings before the Panel and the evidence of Achmat has been recorded and made available to both ‘Jane’ and the WLC to enable to ‘Jane’ to respond and challenge Isaacs should she so wish. Jane has elected not to present herself before the Panel and respond to Achmat’s version. She has chosen not to be subjected to any form of testing of the allegations as they appear in the M&G or to the response and denial given by Achmat32.
d. Achmat’s version of events is therefore unchallenged and corroborated by the documented messages exchanged between ‘Jane’ and himself over a period of time.
Any other allegations of intimidation or silencing of potential complainants
86. Isaacs denied any incident or involvement in any incident which could have been covered by paragraphs 12.1.2 or 12.1.3 of this Panel’s Terms of Reference other than the intimidation alleged by Daniel Mackintosh as explained below.
87. Isaacs informed the panel that he did know that Daniel Mackintosh had made public accusations on Facebook that he, Isaacs, had threatened to withdraw the reference which Isaacs had offered for Mackintosh to use in his application for a clerkship at the Constitutional Court. However, Mackintosh had indeed used this reference in his interview for such clerkship which meant that the reference had obviously not been withdrawn. It was Mackintosh, when being asked by the interviewing judge about knowing Isaacs as a referee, who had made certain comments about Isaacs. This led to the interviewing judge contacting Isaacs and Isaacs told the Panel that he had responded that Mackintosh had not done anything which would embarrass the Constitutional Court. Mackintosh got the job.
88. No complaints of silencing or intimidation of any person by Isaacs, Achmat or anyone else associated with Equal Education have been made to this Enquiry.
89. Insofar as Charlotte Fischer has made complaints to the Mail & Guardian and on Radio 702 about the alleged attitude towards and remarks made to her by Professor Ensor, this is dealt with in the section on the 2011 Human Resources Subcommittee enquiry into what was brought and named “rumours” by Joey Hasson. However, it should be noted that there is no substance to those allegations of silencing or intimidation (if that is what they were) made by Fischer in the media concerning Ensor and that she made no such complaint to this Enquiry.
GENERAL COMMENT ON PERSONS WHO CLAIM ANONYMITY FOR THEMSELVES BUT NAME OTHERS IN ALLEGATIONS IN THE MEDIA
90. Professor Langa is of the view that this section need not be included in this Report.
91. The article in the Mail & Guardian of 18th May 2018 , followed by further online articles, were reported as emanating from unidentified persons being either “more than a dozen female Equal Education staff members, both current and former…” and “this includes three women who told…” and “Jane- not her real name although her identity is known to the M&G”.
92. It is not necessary to comment at this stage on the connection or lack thereof to Equal Education of informants who may eventually have come forward.
93. But I do believe that it is necessary to express my greatest concern, serious disquiet and even disgust at persons who hide behind anonymity for themselves when making grave and reputational destroying allegations against persons whom they freely name and shame and deny the same opportunity for privacy before any investigation into the truth or otherwise of these allegations is conducted.
94. I appreciate that the “women” and ‘Jane’ did not themselves write the article. But each one of them participated in the framing and content thereof. And each one appears to have required anonymity for herself (or himself).
95. No reason is given why any one of these persons require or are entitled to such privacy. No justification is offered for the lack of identity or namelessness of those who offered up these headlines and these allegations. They sought and were granted anonymity33 but nothing appears in the Mail & Guardian to explain why this was desired or necessary or justified.
96. Persons (boys or girls, men or women, gay or straight, bisexual or transsexual) are not those who should feel shame when they are the victims or survivors of harassment of any sort. They have done nothing of which they should feel mortified, humiliated, disgraced. They do not always and everywhere need their identities to be kept secret They can be proud when they survive, they can be strong when they challenge. They should feel pride when they have the courage to come forward to denounce those who have done them wrong. Victims of sexual harassment and survivors of rape are the persons who can best shout out aloud of the evil endemic in so many societies. The ‘#MeToo’ campaign is grounded in the personal accusations of women who have spoken out publicly, showing themselves and their pain. It is their abusers who should and do feel the humiliation and the disgrace of their actions and their personae. True victims need feel no shame or disgrace in having survived abuse. I cannot comment on the need for anonymity by any one of the persons who spoke to and gave information or made allegations to the Mail & Guardian because none was given in the article.
97. It seems that no thought was given to the denial of the same courtesy of privacy for either Isaacs or Achmat. Anonymous complainants have sought privacy for themselves when they have chosen to cause allegations of great impropriety to be publicly made against two named men. These allegations have been published in both the hard media and online, locally and internationally with the names of Isaacs and Achmat in headlines and with full photographs of both of them well situate within the full text of the article. No thought appears to have been given to the pain and hurt experienced both privately and professionally, in the personal lives and public personae of either Isaacs or Achmat when their names were splashed all over the Mail & Guardian in this manner. They seem to have been considered fair game because of the nature of the allegations made against or concerning them. Yet it could have been possible to keep all identities private and merely say some women have made allegations against some men within the organization.
98. What has been published using words and ideas and information from anonymous persons appears to constitute an attempt to destroy good names and reputations without even a hearing or a fair opportunity to confront the substance of any allegation. There is no indication that Isaacs or Achmat were offered anything more than an opportunity of denial of the allegations or that they were offered an opportunity to give a full response as they have done in this Enquiry – after the horse had bolted the stable door. There was no urgency to the publication of this newspaper article in May 2018 – after all, the events concerning Jane went back some 9 years to 2009 and the now criticized EE Human Resources Subcommittee hearing was in 2011. The rush to publication without hearing and publishing a full response, is somewhat reminiscent of the gutter journalism of the National Party Apartheid regime where allegations of ‘terrorism’ and ‘terrorist acts’ were made by unnamed sources, i.e. member of the security police, against persons who were identified and named in circumstances where they had no opportunity of reply and where untested propaganda could rule the roost.
TERMS OF REFERENCE 12.1.2 – ANY OTHER SPECIFIC COMPLAINTS OF SEXUAL HARRASSMENT OR RELATED MISCONDUCT, INCLUDING IN RESPECT OF OTHERWISE CONSENSUAL RELATIONSHIP, WITHIN THIS PERIOD RECEIVED BY THE PANEL IN TERMS OF THESE TERMS OF REFERENCE.
99. Paragraph 12.1.2 of the Terms of Reference require this Panel to investigate “any other specific complaints of sexual harassment or related misconduct, including in respect of otherwise consensual relationships, within this period received by this Panel in terms of these Terms of Reference”.
100. I have understood this category of complaint within the bounds of “sexual harassment or related misconduct” as being grounded within the definitions of such harassment or misconduct as found within the EE ‘s own ‘Policies and Procedures Manual’34 because of mention thereof in the Terms of Reference of this Enquiry35. However, it must be appreciated that this Panel is not conducting a disciplinary enquiry. Furthermore, readers should be aware that there have been complaints which do not fall within this category but which reflect unhappiness or hurt concerning disregard of younger or less important people within EE, perceptions of racial bias, the difficulty of fully offering one’s services to EE when one perceives oneself as not being part of an ‘in group’ or of the leadership. These are not issues within our Terms of Reference nor within our competency but I shall comment on them at the end of this Report.
Notices
101. On 12th July 2018, Equal Education published a full notice on its website advising that the members of the Panel of Enquiry had been appointed, that attorneys CTH were assisting and complainants were encouraged to contact a named attorney and a candidate attorney at a special email address – [email protected] - or at a telephone number. The notice advised that attorneys CTH were prepared to assist any complainant in preparing a written submission to the Panel. Indications were given of preliminary dates for the Panel to convene in Cape Town to hear complaints.
102. Subsequently, during September 2018 EE published an internal memorandum regarding the ongoing work of the Enquiry and circulated this to staff members.
103. The Mail & Guardian also reported on the establishment of this Enquiry by Equal Education.
104. The Panel itself (Professor Manjoo) personally made direct contact with the five persons who had been named in the initial complaint by Joey Hasson in 2011 (although we were well aware that none of those women had themselves made any complaint and we had no knowledge if they wished to participate in this 2018 Enquiry). One person responded in a state of some distress that her name had ever been mentioned and was known to us and that she had even been approached, another confirmed a new email and the Panel through attorneys CTH engaged with the others.
Victim responsive approach
105. The Terms of Reference require that this Panel should publish a notice inviting any person to submit a written complaint or information relevant to the inquiry within two weeks of such notice36, that any information and complaints received by the Panel shall be furnished to Isaacs37, that the Panel shall have the power to take steps necessary to fulfill its functions including the conducting of hearings to receive evidence and information, identify and communicate with any person relevant to the enquiry38.
106. Mindful of the sensitivities of persons who have been used or abused and also conscious of the time which it may take to absorb and recover from distress and even trauma, this Panel was always prepared to make adjustments to those processes provided for in the Terms of Reference. I feel that the Panel was correct in adopting an approach which would attempt to be less bound by the time periods and processes prescribed in the Terms of Reference, less constrained by legal niceties and more open to allowing anyone to come forward in circumstances where they would feel safe.
107. Accordingly, we did not require complainants to make their complaints within the prescribed period of two weeks after EE had announced the appointment of this Enquiry on 12th July 2018.39 The closing date for such submissions would therefore have been 26th July 2018. We did not insist upon compliance with the Terms of Reference. Through our secretariat attorneys CTH and through the WLC and sometimes ourselves we have extended deadline after deadline to allow sufficient time for persons to ponder over what they believe happened to them, absorb the consequences of coming forward and facing the challenges of an Enquiry such as this. We learnt from the WLC how some women would talk and discuss and be prepared to participate and would then change their minds and how the WLC would listen and respond but not direct or insist upon participation. This is not an easy process and I have dealt with it in greater detail below when discussing our indebtedness to the WLC. The deadline ultimately became the 19th October – some 3 months after the EE deadline as set out in the Terms of Reference.
108. Understandably, Isaacs, Achmat, Ensor, Geffen, Feinberg and Adler were concerned at the lengthy delays and felt that they were being prejudiced as the process of this Enquiry took longer and longer whilst it was their good names and reputation which had been and remained so challenged. They also expressed anxiety that such delays was part of a strategy to search for, solicit and encourage complainants to appear.
109. At the first meeting of this Panel, I initially raised the possibility that some informants or complainants might require emotional or legal or other support should they come forward. EE has briefed three therapists (Teboho Monyamane in Johannesburg, Themlihle Dube-Addae in Century City, Cape Town and Nokuthula Shabalala in Sea Point, Cape Town) to be available. Attorneys CTH confirmed to the WLC that EE would fund up to four therapy sessions per complainant regardless of their affiliation to EE as supporter, former employee or former volunteer and even if the complainant wished to make use of her own therapist at an approved rate per session. It must not be thought that the ethnic identity apparent from the names of the therapists reveal that any or all complainants emanate exclusively or even mainly from one racial group since this is certainly not the case.
110. The EE Terms of Reference allowed for complainants to request that their own identity remain confidential40, that the proceedings of the Panel would not be open to the general public or to members or EE other than those giving evidence41 and that every person involved in the functions of this Enquiry was obliged to preserve the confidentiality of the proceedings42. Thus, from the outset, confidentiality from the public was one of the principles of this investigation. And the Panel took the view that this was correctly so. Throughout this process, neither this Panel nor attorneys CTH have disclosed any information given to us in confidence or upon terms which have required us to work in a partially confidential and partially disclosing fashion. The difficulties of this aspect of our work will become more apparent when I deal with the terms upon which we received a number of submissions. And there was always the possibility for making a request for confidentiality within the Enquiry itself and receiving either a positive or negative response thereto.
111. There may be many highly personal and private reasons for not wanting to participate in a process where the kernel of the enquiry is that one disclose and discuss one’s private, intimate, sexual life. Similarly, there may be reasons why some people do not wish to reveal events or personal interactions which were or remain hurtful or distressing even though they do not constitute sexual harassment or misconduct and do not want to divulge their identities to those against whom they are making complaints. These considerations have been at the heart of the work of this Panel when we dealt with paragraph 12.2.2 of the Terms of Reference and are discussed in the section below.
112. The personal and often intimate nature of sexual harassment suggests that the usual and accepted procedures of legal practice and particularly the law of evidence require adjustment to meet the exigencies of the situation – vulnerability, horror, distress, remembrance, trauma and so on. We know in the criminal courts that special procedures are adopted in closing the courts to the public, family members or the media in rape cases or ordering that names not be published. We know that in criminal cases involving children our courts utilize intermediaries appointed in terms of the relevant legislation and that evidence is given from other rooms through television. In short, there is no intrinsic reason why an enquiry such as this should not adapt or develop traditional methods of receiving and testing evidence and seek a more transformative methodology of exposing and examining allegations of sexual and other harassment. The Panel has been committed to a transformative approach in the gathering of appropriate information, utilizing such information and then enabling it to be appropriately examined and evaluated.
113. It was this Panel which proposed that information could be received in a number of ways. We suggested that we could receive information in writing rather than in person; we could transfer that written information to those against whom complaints were made; we could arrange for separate hearing rooms where the complainant could talk to the Panel without the presence of any respondent but that the written discussion including all questions and answers would be transmitted via video or audio to another venue; we thought that questions or versions or challenges from the respondent could be presented to a complainant by video or audio or through the Panel itself; at one stage there was even consideration given to making known only the “gist” of a complaint to the alleged wrongdoer but this was abandoned due to the difficulties of determining both authorship and content of the “gist” . In short, a number of possibilities of being transformative in intent and approach have been considered and a number of modifications to traditional adversarial or inquisitorial approaches received consideration and were discussed.
114. However, it must be appreciated that a ‘victim sensitive’ or ‘victim centered’ approach cannot operate in a vacuum devoid of regard for the principles set out in the Constitution of the Republic of South Africa, 1996 as also the concerns, admonitions and strictures of natural justice, administrative law, labour law or as set out in our common law and in various Statutes and regulations. This will be dealt with in detail below.
115. The Terms of Reference also prescribe that any information and complaints received by the Panel should be furnished to Isaacs43 – and to anyone else against whom any such complaint is made. Accordingly, an undertaking was given both verbally and in writing by myself to the legal representatives of and to Isaacs, Achmat, Ensor, Feinberg, Geffen and Adler themselves that all information received and complaints made concerning any one of them would be furnished to them. I had every intention of honouring that undertaking. However, when certain information was provided or complaints made they were tendered on certain terms only – complete confidentiality and no disclosure to Isaacs, Achmat, Ensor, Feinberg, Geffen and Adler. This created a most difficult conundrum: to honour one undertaking and fail to honour another. The answer is found in the sections below. The solution has been found in the firm and decisive views expressed by the representatives of Isaacs, Achmat, Ensor, Feinberg, Geffen, Adler and those respondents themselves but also in the sensitive and thoughtful and very considered approach of and discussions held with the WLC.
116. Although the Terms of Reference allow for this “Panel to regulate its own proceedings” this was permitted for two primary purposes – “to fulfill its function and that the process respects the rights of all concerned.”44
Receipt of complaints to attorneys CTH
117. Potential complainants started communicating with attorneys CTH at the dedicated email address from 11th July 2018 onwards. They enquired about the investigation, the work of the Panel, the procedure for submitting a complaint, the basis upon which a submission or complaint would be received.
118. Submissions were received by attorneys CTH over the period 19th July until the end of October, by which time most of those persons had now been assisted by the WLC and submissions were coming through that organization.
Referral to Women’s Legal Centre
119. The WLC, founded some twenty years ago, is a feminist law centre that advances women’s rights and equality through strategic litigation, advocacy and partnerships. The WLC has a vision of women in South Africa who enjoy equal and substantive access to their rights. The WLC seeks to achieve this vision through action through action in support of women’s rights using tools such as litigation, advocacy, education, advice and training. In particular, the WLC aims to defend and protect the rights of vulnerable and marginalized women, in particular black women, and to promote their access to justice and equitable resources through impact based litigation, the provision of free legal advice, legal support to advocacy campaigns and training that ensures that people know and understand the impact of court judgments on women’s rights. The WLC seeks to advance women’s freedom from violence, substantive equality and agency in all aspects of their lives – at home, at work, in the community and within society at large.
120. The Panel decided to ask attorneys CTH to refer complainants to the WLC for assistance for a number of reasons. Firstly, it was more likely that the WLC would have the necessary expertise than would a secretariat firm of attorneys. Secondly, some persons (including complainants) may have perceived attorneys CTH as working for Equal Education or for the Panel which may have led to concerns about priority being given to complainants. Thirdly, the reputation of the WLC is such that it is known to be prepared to tackle difficult issues and pursue them to the highest courts in the land. No one could doubt their combination of commitment to those in need of help (particularly the female victim) or their dedicated professionalism. Fourth, a number of persons had initially approached the WLC and not attorneys CTH and there seemed to be great value in having a holistic overview of complaints and coordination of complainants. Fifth, some of those persons who had initially contacted attorneys CTH had now heard of the WLC and wished to participate in a combined endeavor.
121. We must make it clear that attorneys CTH responded to each and every man or woman who came forward offering assistance with regard to preparation of statements and, if there seemed to be great anxiety or uncertainty, offering a referral to the WLC once they had become involved. In no ways did the Panel or CTH ever intend to rebuff or avoid any potential complainant but we simply felt that the WLC could provide expertise and whose involvement would assure potential complainants that they would not being assisted by attorneys who had been appointed to service the Panel which could have led complainants to feel that attorneys CTH had responsibilities other than dedication to the complainants or potential complainants.
122. This Panel greatly appreciates the hard work of the WLC. We realize that the organization had its own programmes and projects and plans for the year, had prepared budgets based thereon and allocated their human resources in accordance therewith. Through its assistance in this Enquiry, we are aware that the plans and resource allocation of the WLC has been greatly disrupted but appreciate that the WLC’s assistance has been given to so many without resentment or complaint.
123. I would also remark that it was only when we met with the WLC as a Panel on 23rd October that I personally realized some of the challenges in obtaining and preparing and presenting complaints or submissions in matters involving sexual harassment or other misconduct. I learnt that the WLC had dedicated one specific person within the organization to work with those who approached them regarding this enquiry (as I must point out had attorneys CTH who had appointed two women). I also learnt that collaboration with persons who may wish to make complaints (whether regarding sexual harassment, other misconduct, racial or educational inequality, disregard within organization hierarchy) requires much time and patience. We were told that potential complainants would communicate or meet with WLC, consider and then reconsider all the implications of participation in this process, make statements, withdraw them, reinstate them. This is not to denigrate those who engaged with the WLC and who did or did not eventually make submissions but to acknowledge and applaud the manner in which the WLC tendered these services.
Terms upon which submissions of information or complaint tendered
124. Ultimately, a total of 19 written submissions have been furnished through the WLC to this Panel. Although none of these submissions have been furnished to any person interested in this investigation, I believe that it is important to indicate to both the general public and all interested parties that not all these submissions concern “sexual harassment or similar misconduct” and similarly not all these submissions concern either Doron Isaacs or Zackie Achmat or the persons involved in the 2011 Human Resources Subcommittee hearing.
125. The identity of some of the persons who have made such submissions is known to the Panel and others by reason of:
a. their naming in the complaint made to the earlier 2011 Human Resources Subcommittee hearing (for which there is no indication that the author of that ‘complaint’ had sought their permission so to do) or
b. because their names appear on emails written by themselves at the time of discussions of “rumours” and subsequent to the presentation of the results of the Human Resources Subcommittee hearing or
c. because they have used their names when engaging in public debate over the radio concerning the allegations set out in the Mail & Guardian article45.
126. However, each submission contained a full paragraph setting out the basis on which these submissions were made to this Panel. Essentially the submissions precluded full disclosure of authorship or complaint insofar as this revealed such and this Panel was precluded from revealing any portion thereof to Isaacs, Achmat, Ensor, Feinberg, Geffen or Adler. Accordingly, I elected to prepare my own summary of the terms upon which these submissions had been received by the Panel (in order not to violate confidentiality by even quoting from a submission document) and which summary was sent by letter under my name to the interested parties46 :
“1. ….
2. ….
3. All those submissions contain certain procedural restrictions regarding disclosure to yourselves. We have not been given permission to share with yourselves any portion of the submissions but we are able to disclose that the submissions and the participation of the authors in this Enquiry are made on the following basis (as summarized by myself):
“1. The name of the author is disclosed to the Panel on five occasions and not disclosed on seven occasions47.
2. None of the authors will allow their names or participation in this process to be disclosed to Mr Isaacs or his legal representative48.
3. No submission of any portion thereof can be shared with Mr Isaacs or his legal representative in any manner whatsoever.
4. Most of the authors will not appear in person at any hearing of the Enquiry alternately may appear on the basis that there is no disclosure to Mr Isaacs or his legal representative of the identity or participation of such author.
5. The authors of the submissions will not subject themselves to oral evidence or be ross examined.
6. The authors of the submissions are either not in a position to engage with the Panel on questions of clarity alternately are so prepared provided only that they are questions of clarity alternately they are so prepared provided that the questions are in writing only.
7. Our Panel is empowered to utilize submissions in order to inform any questions which the Panel wishes to put to Mr Isaacs but may do so only in a manner which ensures that the identity and the participation of the authors of the submissions are not disclosed to Mr Isaacs or his legal representative.”
4. We have previously given you our undertaking that we would forthwith make available such submission and complaints as and when we receive them. Regrettably, it is not now possible to honour this undertaking.
5. Although the submissions refer only to non-disclosure to Mr Isaacs and his legal representative, I have enquired of WLC whether these limitations apply also Mr Achmat, Ms Ensor, Dr Geffen, Mr Feinberg, Ms Adler. Absent confirmation from WLC, I have (in order to be prudent) assumed that the restrictions apply to all parties.”
127. This summary was also sent to the WLC who have not complained about the substance thereof and who confirmed that the restrictions applied not only to Isaacs but the other named persons as well.
128. The upshot was that the submissions were tendered only on the basis of compliance by the Panel with these restrictions. Absent any intention to comply with the conditions attached to such submissions, then these submissions should have immediately been returned by the Panel or would presumably have been withdrawn by the authors thereof or the WLC. Accordingly, I was unable to honour the undertaking which I had earlier given to the respondents (the persons against whom the complaints were made) – Isaacs, Achmat, Ensor, Feinberg, Geffen and Adler - that all information relevant to or complaints concerning them would be made available.
129. The immediate and obvious difficulty arose that a number of submissions/complaints had been made which could not be shared with any one of the respondents – Isaacs, Achmat, Ensor, Feinberg, Geffen and Adler – who were therefore in no position to respond thereto at all. These respondents (against whom averments or allegations or complaints may have been made) did not know what information was tendered, whether it was a complaint or not, what was the content thereof, what response could be prepared, how to test or challenge or present a different version to that information which had not been revealed to them.
130. Faced with this apparently irresoluble dilemma, I proposed that each interested party
– the WLC representing complainants or informants and Isaacs, Achmat, Ensor, Geffen, Feinberg and Adler – prepare heads of argument or representations on the status of these documents; the use to which they could be put; what impact the Constitution of the Republic may have, tenets of natural justice, administrative law, labour law and other relevant considerations which could be brought to bear on these documents. In short, the issue might be stated as examination of the relevance of these documents for purposes of conducting a fair enquiry or investigation in view of the parameters of the Terms of Reference.
131. We are indebted to all parties who prepared representations or heads of argument49 and appreciate why it was that Feinberg and Adler declined to participate in such a process and the reasons which they gave therefore. The WLC did prepare submissions but made it clear that these were “for the attention of the Panel only” and so their representations were not shared with any other party nor did the WLC meet with the Panel at the same time as did all others – but on the same day and at an earlier period. However, we appreciate the professional courtesy of other involved parties who forwarded their heads of argument to the WLC.
The position taken by and the submissions of the WLC
132. The WLC had taken the position throughout that this process, i.e. the investigation established by EE, was an investigation in which the Panel must exercise an inquisitorial function. It was submitted that the Panel was not required to make any findings and, at best, could only conduct an investigation which process would only be a preliminary one. The issue of the weight of information was not an appropriate or necessary consideration at such stage. All that the Panel could or should do would be to receive the submissions and then assess whether or not these established a prima facie case that there had been wrongdoing which amounted to misconduct for the purposes of EE’s policies.
133. Much reliance was placed on a judgment of the Supreme Court of Appeal, Chairman, Board on Tariffs and Trade and Others v Brenco Inc and Others 2001 (4) SA 511 SCA, where Zulman JA wrote that “fairness is context dependent”, that there “is no single set of principles for giving effect” to rules of natural justice and that there should be “real flexibility” in determining what would be fair in all the circumstances.
134. On the basis that the court in Brenco supra had found that an affected person need not be provided with every piece of information in order to enable him or her to make worthwhile representations, the WLC argued that it would be sufficient to make non- confidential summaries informing Isaacs, Achmat, Ensor, Feinberg, Geffen and Adler of the “gist” of the case which each has to answer.
135. The first difficulty for this Panel was that Brenco supra concerned only the first part of a two-stage process. What was under consideration by the court was only the preliminary investigative stage which would thereafter be followed by an enquiry. However, this Panel is not engaged in a two-stage disciplinary hearing as provided for in EE’s own manual. The process conducted by this Panel is a once-off process of which there is no indication that another will follow. This Panel is required to investigate with a view to receiving evidence, making findings and recommendations and issuing a report.
136. On this basis, fairness could not be found in an indication of a very circumscribed “gist” of allegations or complaints or information which would be followed by full disclosure of all information at a second further stage for which no provision has been made.
137. In any event, there were no suggestions who could compile this suggested “gist” of allegations, which persons would deem portion or all of such “gist” acceptable and in conformity with the conditions set by the authors of the submissions , how such “gist” could be prepared so as to enable an informed response from the other parties.
138. After engaging in debate on these and other legal issues, the Panel and the WLC turned to issues of a non-legal nature and usefully engaged on the concerns of those persons who had approached and worked with the WLC in preparing these submissions. The WLC in no way abandoned the position taken by their clients or themselves and continued to insist that every effort must be made to seek justice in the very real sense of ensuring that a safe space exists for vulnerable persons to be heard and to have their experiences heard and acknowledged.
139. The WLC pointed out that the Terms of Reference of this enquiry as drafted by EE had not, perhaps, fully taken into account that the EE manuals and procedures were not the basis for this particular enquiry when no employee was the subject matter thereof. It may have been more helpful not to have grounded the enquiry within the usual EE process since no disciplinary steps could have been contemplated. The WLC responded that the way forward for their clients and for other women, would be to fully examine the toxicity of certain cultures and the means whereby these could be remedied and abuse prevented.
140. Whilst it is appreciated that EE felt it had to address the allegations raised in the Mail and Guardian without delay, I do feel it may have been more helpful for EE, the complainants, the respondents and this Panel to have taken some time to create a less legalistic framework for addressing the issues. However, this Panel has attempted, through the powers given to it, to adapt its powers to the unique and sensitive circumstances with which it has been faced. We are also mindful that difficulties have emerged by reason of some ambiguities or absence of analytical clarity within the Terms of Reference and the absence of directly applicable precedent upon which we could all rely with confidence.
141. I appreciate however, that the WLC has raised issues about how and in what manner women experience sexual harassment and the many sequelae thereof. I do note the advice by the WLC to this Panel that this Panel should reflect in this Report why it was that the complainants chose not to make their submissions available to those against whom they made complaints. The WLC wrote that the complainants came forward under the conditions given “within a climate and environment where hostilities and influence exist that are beyond the powers of this Panel to address.”
Regard to the ‘rights’ of all concerned
142. Our Terms of Reference expect that the “rights of all concerned” be respected50 and none of those involved would wish to do any the less. An indication of such rights may be found in those set out in the Constitution such as the right to equality and to be free from unfair discrimination (such as sexual harassment)51, the right to bodily and psychological integrity52, the right to dignity including the right to one’s reputation53, the right to have any dispute resolved in a fair public hearing before a court or another independent and impartial tribunal or forum54, the right to administrative action that is lawful, reasonable and procedurally fair55, the right to privacy56.
143. I have acknowledged the rights of any woman or man who would be a complainant in this matter to equality, freedom from unfair discrimination, bodily and psychological integrity and continue so to do.
144. However, one must also acknowledge that Isaacs, Achmat, Ensor, Feinberg, Geffen and Adler have rights to dignity including reputation, the right to privacy, the right to have any dispute resolved before an independent and impartial forum and, insofar as Equal Education is engaged in work involving a public function then to the right to administrative action that is lawful, reasonable and procedurally fair.
Fair Procedure
145. In addition, I am mindful that in the pre-Constitutional days our common law laid much emphasis on the principles of ‘natural justice’ which have not been jettisoned but adapted and adopted and sometimes explicitly incorporated within the Constitution. It is probably inappropriate to refer to legal precedent when one is attempting to embark upon a non-legalistic approach in an enquiry rather than a court. Nevertheless, I would be loath to ignore the views of the then Appellate Division such as:
“What the fundamental principles of justice are which underlie our system of law, …. have never been exhaustively defeined and are not altogether clear. In Russell v Duke of Norfolk and Others (1949) 1 All E.R. 109, Lord Tucker said at p 118 that –
“The requirements of natural justice must depend on the circumstances of the case, that nature of the enquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth. …. Whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.”
The principles of natural justice do not require a domestic tribunal to follow the procedure and to apply the technical rules of evidence observed in a court of law, but they do require such a tribunal to adopt a procedure which would afford the person charged a proper hearing by the tribunal, and an opportunity of producing his evidence and of correcting or contradicting any prejudicial statement or allegation against him ( Marlin’s case, supra at p 126 ; Bekker v Western Province Sports Club (Inc) 1972 (3) SA 803 ( C ) t p 811). The tribunal is required to listen fairly to both sides and to “observe the principles of fair play”
(Marlins case, supra at p [126 and 128…”57.
146. I can see no reason why this Panel should not adhere to the principles of natural justice also known as procedural fairness which necessarily requires that ‘fairness’ is at the heart of the entire process – whether adversarial, inquisitorial or a variety of both.
147. ‘Fairness’ is indeed a flexible concept which must be tailored to each situation and each enquiry. Hence, my comments on some of the procedural issues which can be considered in an enquiry investigating sexual harassment because it is contextual factors which may determine the content of what is fair in a given situation.
148. But what has never, to my knowledge, been redacted from the concept of ‘fairness’ are the requirements that a person facing allegations must be put in possession of such information as will enable her/him to make a real response thereto. Anyone against whom allegations are made must have all relevant information disclosed to such person and then giving an opportunity of fully dealing with it. One first needs to have and know the full allegations against oneself and the information upon which they are grounded before one can even attempt to present one’s own information or evidence in response thereto.
149. It is accepted in our legal practice (and can hardly be removed from the practice of an enquiry) that implicated persons must know the content of allegations so that they can respond thereto. They must be placed in possession of such information as will render her or his rights to make representations real, be placed in possession of original and unmodified documents as are before the Panel and must have an opportunity to controvert any prejudicial allegations against her or himself.58 If this Panel is presented only with unsworn and untested and unchallenged written documents, then this Panel cannot fulfill its function.
150. In the present case, the persons who wish to make complaints have all indicated that they do not wish their full written statements to be made available to Isaacs or anyone else, that they do not wish to be questioned or challenged in person by Isaacs or anyone else even in a modified form as this Panel has suggested (i.e. video or audio links or through questions presented by the Panel).
151. The Terms of Reference presuppose oral hearings59 or failing that and with good reason affidavits or written statements. We have not even been offered affidavits i.e. statements made under oath. Neither the Panel nor those persons against whom allegations are made are in a position to evaluate any reasons which may be presented for deviation from the standard of oral hearings. And, in circumstances where there seem (from the response to the M&G articles) to be issues in dispute, oral evidence is seen as the most helpful method of clarifying issues or assessing the veracity of evidence that is properly questioned in order that any Panel such as this may reach the truth and resolve a dispute. Yet that is precluded to the respondents and the Panel, since no opportunity is permitted to dispute that exceptional circumstances exist to justify modified or adjusted processes – whether of complete confidentiality or non-disclosure of the full allegation.
152. The degree of confidentiality and secrecy which is sought by the potential complainants pertains not to the general public but to the withholding of all information from those persons who are essential participants in this entire process – the alleged wrongdoers. At the end of the day, this Panel must be offered good reason based upon objective and subjective evidence as to why procedures of open justice and fair procedures should be limited60. Not only the Panel but also the implicated persons (Isaacs, Achmat, Ensor, Geffen, Feinberg, Adler) must also have the opportunity to test such evidence as is offered as to why there should be modification of fair procedures.
153. My own research into Codes of Good Practice in the hearing of allegations of sexual harassment (ranging from South African statutes (such as the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace published under the Employment Equity Act of 1998) and legal procedures in fora adopted or implemented or approved of in the workplace, CCMA hearings, Labour Court and Labour Appeal Court, legal precedent in India, as well as continually developing sexual harassment policies and procedures at universities in South Africa, Australia and the United States of America) has given no indication that the bare unsworn statement of a complainant is accepted without further ado and that respondents are denied the opportunity to have access thereto and to challenge and test such information. The Labour Court has commented with approval, on the process whereby the complainant is subjected to cross-examination and credibility findings can be made in circumstances where the implicated respondent could ask whatever questions he wanted and lead whatever evidence he wanted.61
154. We were referred by Counsel to the ILO Sample Sexual Harassment Policy and the Australian Human Rights Commission Good Practice Guidelines which are to similar effect as also to a number of policies adopted in the U.S.A., academic articles thereon and reported judgments. I can only but approve of the approach of the Human Rights Commmission of Australia which posits ‘fairness’ as an essential element of a good complaint process in the following terms:
“Fair: this means that both the person complaining (the complainant) and the person being complained about (the respondent) should have the opportunity to present their version of events, provide supporting information and respond to any potential negative decisions.”
155. This Panel has been presented with only one option: that of absolute confidentiality for the proposed complainants coupled with absolute ignorance for the alleged wrongdoers. This cannot be right. We have considered and had regard to a number of options for ensuring sensitivity in procedure and safety in process. These were not acceptable to the potential complainants. We cannot then preclude access to essential information, deny an opportunity to fully respond, not allow an implicated person the opportunity to dispute or test any allegation and place this Panel in the position of having no opportunity to test and evaluate either complaint or response.
Conclusion
156. In the result, I can only but find that a fair procedure held by this enquiry convened by Equal Education must require that anyone who is implicated in any one of the actions or inactions set out in Clause 12 of the Terms of Reference must be properly informed of the complaint against her or him, the full details thereof, given an opportunity to test every allegation through verbal confrontation unless objective and subjective evidence has established that it is quite unfair and improper to expect a complaint to fully participate in such proceedings and that modification of usual fair procedure should follow.
157. Without fair procedure this Panel cannot be expected to have and will not have properly done our work. In the circumstances, I do not believe that this Panel can lawfully or properly receive the written submissions on the basis and terms on which they are tendered. They cannot constitute evidence in these proceedings at all.
158. I cannot agree with the submissions of the WLC to the effect that “[w]hile the Panel may not be able to make findings on the veracity (beyond a reasonable doubt) of the submissions because they have not been tested, the Panel cannot deny that submissions
were made”. First, in the absence of disclosure to those against whom any complaints are made, we cannot have regard to the submissions or their content. This Panel, to my mind, cannot “deny” that submissions were made – we can have no regard to their existence in the light of the terms on which they were submitted. Secondly, appropriate disclosure and exchange and testing of complaints might enable the Panel to make findings on credibility of the complainant or “the veracity” of the content of their evidence but such evidence would not be required to reach the criminal standard of ‘beyond a reasonable doubt’.
159. Accordingly, I find that the documents submitted by the WLC on behalf of a number of persons cannot be received into evidence in these proceedings.
160. There are thus no complaints tendered in any form in accordance with these Terms of Reference.
161. Professor Langa wishes to stress his regret (with which Judge Satchwell agrees) that this Panel was not given the opportunity of advancing the legitimate cause of victims of sexual harassment through full exploration, in a transformational and transparent manner, of complaints, responses thereto, organization and societal context of exploitation of vulnerable persons.
SEXUAL HARRASSMENT AND ORGANISATIONAL CULTURE
Sexual Harassment
162. The WLC has presented a lengthy submission to this Panel on the legal framework for sexual harassment and misconduct, sexual harassment per se, prejudicial and discriminating behavior, exhibition of patterns of abusive behavior, the responses of victims thereto.
163. I regret that it is not possible to give due justice to their input (as also the remarks contained in the written representations/heads of argument of those Counsel representing interested parties and those parties themselves).
164. But, it must be recalled that the first set and subsequent set of WLC representations were not made available for distribution amongst all those involved in this enquiry; there has been no opportunity to respond thereto. It would be unfair to accept and repeat these learnings and advices placed before us in a vacuum of discussion and debate. More importantly, the WLC’s submissions are premised upon the absolute truth of that which the WLC has read in the complaints which they have received and wished to tender into but were not received into evidence. It would be most improper of this Panel, absent any evidence of or therefore findings as to sexual harassment or other misconduct on the part of any individual or organization, to set out or rely upon the WLC submissions as to specific context or behavior in this regard.
165. Professor Langa has concerns about the ambit proposed by the WLC to be given to the experience of ‘sexual harassment’ and wishes to note that women must be acknowledged as equal holders of Constitutional rights and obligations.
Organisational Culture
166. It must be accepted that the prevalence of varied modalities of abuse, harassment, bullying and intimidation pertaining to gender are to be found within almost every organization and institution throughout the world. Both young and old, boys and girls men and women, gay and straight, bisexual and transsexual persons may all be victims and sometimes the perpetrators thereof.
167. Approval of abuse in any shape or form within the family, school, work or society at large; condonation of the cruelties of harassment and bullying and intimidation within private and public spheres; approbation of disregard for persons outside the ‘old boys network’ or the ‘inner circle’ or the ‘correct class’ have been found everywhere and in every society.
168. More and more world opinion and behavior rejects such behavior. South African society is not perfect but our Constitution makes clear that we should all aspire towards an absence in abuse, harassment, bullying, intimidation, disregard or inequality within government and the private sector, large and small organizations, the home, the workplace, social, sporting and religious spheres.
169. Non-governmental and non-profit organizations cannot believe themselves free from imperfection in policy or practice. Many such organizations proclaim themselves committed to standards of equality, non-discrimination, transparency and democracy but have not always attained these precepts.
170. I accept that there may well be misconduct or insensitivity in a variety of ways in many NGOs. I fear that where an organizational climate is not alert to the possibility of abuse of any sort and does not take steps to ensure that safe spaces exist for ensuring that this does not happen that some persons within may be abused whilst while others may take the opportunity to conduct abuse.
171. However, organizational design, revisiting organizational culture, addressing toxic issues are not within our capacity as a Panel. In any event, Equal Education has informed 62 a number of persons and entities, including the WLC, and has caused to be published a statement that they have established a broader assessment process “which will examine the organization’s record of dealing with mistreatment in the workplace, its policies and procedures with regard to sexual harassment and the organizational norms and culture”63.
172. It is for these reasons that this Panel is not setting out specific approaches to be taken by Equal Education which has already commenced on this journey.
173. It is worth noting that we have received many, many communications from persons who have connections with or involvement in the work of Equal Education. Some have been critical of the organization and persons working within and revealed hurt and distress at how they or others have been treated. Others have been admiring of the organization and appreciative of personal interactions they have had. Many have referred to Isaacs in particular with gratitude, appreciation and affection. We are grateful to all those who have taken the time to reach out to this Panel and let us know their experiences and views.
174. However, it is not for this Panel to balance the number of positive versus negative communications. Nor can any true evaluation of an organization or assessment of an individual depend on the numbers game. If one complaint is fully aired and tested and proven, that is all that this Panel is required to adjudicate. It would be irrelevant to the Panel that hundreds of admiring references are tendered even if only one act of sexual harassment or misconduct was proven against anyone.
175. I also wish to mention that it has been suggested that the timing and nature of the M&G article(s) are just one part of a vendetta by certain persons or organizations against other persons (such as Isaacs, Achmat, Ensor) or organizations (Equal Education and/or organizations with which the above persons are associated). The Panel was asked to investigate such conspiracy or vendetta and pronounce on same. This we have all firmly agreed that we will not do. We are not empowered so to do by our Terms of Reference, we have no capacity so to do, we would be totally unsuccessful since only those who allege this campaign would be prepared to engage with us, we would achieve nothing. Accordingly, notwithstanding that mention was made of persons and organizations and actions taken in the course of evidence and argument, we do not propose to engage with this issue.
176. In any event, this Panel has been required to investigate the existence of any one of a specified class or category of misconduct as provided for in the Terms of Reference. Similarly, a vendetta or conspiracy of any sort would have to be fully shown to have motivated and informed any of the complaints which we would be required to test and evaluate and we have had no such complaints before us. We have had one task only - to investigate and adjudicate upon complaints of sexual harassment, allied misconduct, intimidation or concealment.
TERMS OF REFERENCE 12.2 – REVIEW THE PROCESS AND FINDINGS OF THE 2011 INVESTIGATION INTO ISAACS’ CONDUCT BY THE THEN EE BOARD AND THE HUMAN RESOURCES SUBCOMMITTEE.
177. Paragraph 12.2 of the Terms of Reference require this Panel “To review the process and findings of the 2011 investigation into Isaacs’ conduct by the then EE Board and the Human Resources Subcommittee. The Panel shall evaluate the merits of its findings and the process that it followed, including considering whether any of the members of the Subcommittee was subject to a conflict of interests”.
178. To review any event or process is generally understood to comprise a formal assessment by way of reconsideration of that which has happened or resulted and a critical appraisal thereof64. But this is not a court proceeding. In this particular matter there are deeper issues involved. The Terms of Reference of this Enquiry require the Panel to conduct a ‘review’ in the wide sense of meaning “to look at everything again” i.e. both the process and the merits.
179. The subject of the review is thus twofold –the process followed and the merits of the findings while two actors are to be evaluated – the then Human Resources Subcommittee and the Board of Equal Education.
180. In addition to perusing considerable documentation, the Panel met with Ensor, Geffen and Feinsberg on 8th August in Cape Town, with Adler in Johannesburg on 13th August, over Skype with Hasson on 20th and 21st August from Cape Town to London, and with Achmat and Isaacs on 20th August in Cape Town.
181. I am mindful that hindsight usually offers twenty-twenty vision. This Enquiry is looking at evolving events and actions and people as they all emerged in bits and pieces in 2011 but we are now viewing this series of events and actions from a more holistic viewpoint and a 2018 perspective. It is thus important that we be mindful of our advantages in 2018 but that the issues of and regarding 2011 are scrutinized both from the perspective of that time and as they may still fester today.
Assistance given the 2018 Panel
182. This Panel is indebted to all those who assisted us with documentation and particularly those who collected and collated the documents pertaining to that Hearing which was made available to this Enquiry. It is notable that, amongst the material which was sent to us, were documents which raised questions or opened up the 2011 process to doubt or criticisms. I view this as indicative that we were not being presented with a censored or doctored version of events intended to present the 2011 proceedings in only the best possible light.
183. I appreciate that handwritten notes were not retained and that all the persons who assisted us stressed that they were relying upon memories of events some 7 years ago which were not always clearly remembered and could not always be recalled and were perhaps now being viewed through a different prism.
Background to the 2011 Hearing
184. During June 2011, what were called ‘rumours’ apparently began to circulate in Cape Town that there had been a romantic relationship between Doron Isaacs ( who was then the EE Coordinator) and an intern at EE which resulted in her withdrawing from EE 65. Joey Hasson, told this Panel that there was a group of people (some of whom had known each other in Habonim while others were working in Equal Education) who had heard and repeated comments about the private and sexual life of Isaacs which had become more widespread.
185. It was the recollection of both Adler and Hasson, that a number of people wanted to talk to him (Hasson) privately and may have done so. There was a meeting of EE management on 3rd June of a number of concerned persons within EE concerning these ‘rumours’. The email66 dealing with an EE decision taken was entitled “the rumour mill” and it was felt that the ‘rumour’ did not concern a person at EE and that this person was not “young and vulnerable” but that “those who have heard and are possibly spreading this story have heard differently and do not know better”. The ‘rumour’ is “dangerous and can be damaging” and that is why the “overall feeling” was that the matter should be taken to the Board. It was agreed that Isaacs report the situation to Ensor and it was also thought that Isaacs should not “contact anyone involved in this”67.
186. It was felt68 that Isaacs should not deal with this (or any other) allegation(s) about himself by himself. Ensor (Chair of the Human Resources Subcommittee was contacted and she informed Achmat (as Chair of the Board of EE) of what she had heard and advised Isaacs to approach Achmat to have this/these allegation(s) investigated.
187. On 5th June , Isaacs sent an email to Joey Hasson informing him that he was going to make a formal written request to the Chair of the Board of EE for a ruling as to whether he, Isaacs, “had engaged in misconduct in the context of the apparent rumour that I had an affair with an EE intern”. Isaacs wrote that he believed that he should make the request for a ruling because he thought “the Board would hesitate to begin entertaining rumours when no complaint has been made.” Isaacs had heard that Hasson was going to “conduct your own investigation” into the rumours. Isaacs felt that this would be problematic if there were two processes – one by the Board and one by Hasson. Isaacs therefore proposed that his request to the Board went forward.
188. Hasson responded in an email of the same day that “It is not for me to lead my own investigation” but that he felt that “it is important to me that ALL rumours which may have an EE connection are addressed here and now so that we can move on….”. For Hasson, it was important that such rumours as existed were be put to the Board or a Panel of the Board and “cleared up” so that everyone could move on. Hasson wrote that his intention in writing his submission to Achmat was to “lay to rest” what had become a problematic issue. Hasson also told this Panel that everyone was quite uncertain as to the way this should be handled and they were only too pleased if it went “out of our hands”.
189. The next day, 6th June, Isaacs asked Achmat, in his capacity as chair of the EE board, to take “whatever measures you deem necessary” in regard to a “rumour that I had an affair with an EE ‘intern’ which caused her to leave EE.”. Achmat was in Palestine at the time. He had a verbal discussion from Palestine with Joey Hasson (EE Youth and Campaigns Coordinator) on 7th June and Achmat asked Hasson to write to him on all the issues which were being raised.
190. The purpose of and the value of setting out this background, as recorded in all these emails, in such detail is:
a. To stress that that no complaint had actually been made by any woman or man against Isaacs. It is noted that the Equal Education Policies and Procedures Manual require that when “an employee experiences or witnesses sexual harassment in the workplace, this must be reported immediately to the employee’s manager or the HR Officer.”69 or “where a non-employee who is a victim of sexual assault may lodge a complaint with the management of EE, in instances where the harassment has taken place in the workplace or in the course of the alleged perpetrator’s employment with EE.”70 Yet no one reported anything at all in terms of the Manual. There was no complaint of sexual harassment by anyone at all – confidentially or otherwise.
b. To understand that whatever concerns existed were identified as no more than “rumours” but nothing factual or specific or detailed or solid. No one came forward with anything concrete – there was just gossip which gossip translated into a set of vague and speculative questions contained in the Hasson document.
c. To note that it was these internal discussions and concerns which resulted in the alleged perpetrator, viz. Isaacs, reporting the rumours concerning himself to Achmat and ask for “whatever measures necessary” to be taken and for Hasson, after exchange of emails with Isaacs making a full report to Achmat. This was an internally generated process and did not come from any person or persons who had (never) alleged abuse or harassment.
The Letter of Submission of Joey Hasson to Achmat
191. Hasson’s written submission to Achmat of 8th June 2011 is a lengthy document which I shall abridge:
“Thank you for talking with me yesterday. I appreciated discussing this matter with you last night and I feel that the process you described to investigate rumours involving is correct, so we can put them behind us and get through this. As you said, there is no real complainant in this situation. We, Equal Education, are the complainants because questions have been raised about the integrity of our leader.
……….
….. Rumours do exist about Doron’s potential abuse of power in regard to young women associated with EE. His reputation is at risk and by extension, EE’s reputation is at risk. Beyond whether there is any truth in what is rumoured, I am concerned that Doron was not truthful when faced with questions regarding ‘KK’ – as information surfaced a discussion he had with ‘KR’ that he had had online discussions of a sexual nature with her.
……..
……..There are however other questions which have arisen relating to young women associated with EE which I feel must be raised. If questions regarding ‘KK’ were an isolated case, I would feel differently.
The complexity of this situation stems from the fact that as the Coordinator of Equal Education Doron makes connections all the time with people wanting to work with EE in various capacities. This correspondence takes place by email. Doron holds the strings in regard to who falls into a personal category, who falls into a professional one and who not ever become[s] associated with EE.
It is therefore extremely difficult to make claims about what is personal and what is professional.
The question I wish to raise below relate to young women whose association with EE may have been negatively affected by inappropriate interactions with Doron. I ask them here, as I asked them to him directly:
1. You were in touch with someone called ‘NV’, from Johannesburg? Was there an EE connection that concerned your interactions? Did you engage in any behavior with her that may have compromised this?
2. For some time, you spoke about a young persons called ‘NS’ coming to assist you as your PA at EE. At some point, the situation changed and this was no longer on the cards. Was there any inappropriate interaction between the two of you that may have soured this?
3. Did anything happen between you and ‘KS’, the intern working on last year’s Annual Report? Why did she disappear, and not complete the task she was working on?
4. Was there any EE connection between you and a girl called ‘TP’? Did anything happen between you that may have affected the development of this?
Two of the ‘rumours’ I have mentioned above were told to me by ‘KS’. Obviously her objectivity in telling them to me is compromised because she feels Doron has done wrong by her. They are however still rumours which have the potential to damage EE.
Even if proven to be true, I would not feel Doron had engaged in official misconduct according to EE’s policies and procedures. However, I would feel that he has acted in a way that leaders should not, and that his actions put EE at risk.
I will end my letter in the same way as when I sent it to Doron: it is not my intention to pry into your private life, but to protect potential damage to the reputation of the organization we have built together.” [The original letter from Hasson to Achmat sets out the names of all women involved in full – it is I who have abridged them.]
192. Hasson’s ‘letter’ (as he described it) or submission as it became at the 2011 hearing raised five issues:
a. First, he had been informed by one ‘KR’ that Isaacs and one ‘KK’ had “online
discussions of a sexual nature” i.e. “sexting” ;
b. Secondly, he had been informed by the former girlfriend of Isaacs, ‘KS’, that
there were “rumours” concerning two young women;
c. Thirdly, Hasson postulated somewhat putative questions about four young women? He names them but is vague about their personal connection with EE, whether there was any personal interaction between these four persons and Isaacs, whether there was any impact of any unnamed “behavior” or “interaction” or “anything that happen[ed]”. He asked questions which purported to solicit information. Hasson made no accusation and gave no definite grounds for any concern. He made no concrete allegation or wrongdoing of any sort, made no reference to any person who had approached him directly or indirectly with a complaint and, at most, suggested nothing more than rumours which had led to what he considered coincidences which he then felt might be attributable to questionable behavior by Isaacs.
d. Fourth, Hasson identifies Equal Education as a “complainant because questions have been raised about the integrity of our leader” and that if there is any truth to the “rumours” then “he has acted in a way that leaders should not, and that his action put EE at risk” and thereby caused “potential damage to the reputation of the organization.”
e. Fifth, Hasson makes the point that he does “not intend to pry into your [Isaacs’s] private life” but that, in the case of Isaacs, “it is extremely difficult to make claims about what is personal and what is professional”.
193. Hasson did not himself enquire into or follow up on what he had been told by ‘KR’ or suggested to him by KS’ or others. He made no contact with the five women mentioned nor found out anything more about them the “rumours”. He was leaving the country two days later. He told this Panel that, In any event, he felt that he had said what he had to say.
Terms of reference of the 2011 Enquiry
194. Although the EE written policies as to discipline entitled the Co-Ordinator’ to delegate disciplinary powers to members of the management team, Achmat took the view that he should exercise powers as Chair - after all, this was the capacity in which he had been approached and Isaacs was a member of said management team. Although he had spoken to Isaacs and received what he considered to be a “plausible explanation”71 he still thought it advisable to convene the Human Resources Subcommittee of the Board for them to arrange a hearing72.
195. On 8th June 2011, Achmat advised Ensor (member of the EE Board) , Nathan Geffen (member of the EE Board) and Michelle Adler (Operations Manager for EE) that he had been asked to agree to “examination of the rumours of personal, private, consensual conversations of a sexual nature between adults over emails relating to a staff member” and that the basis for this request did not emanate from any of the women concerned but primarily from Isaacs himself and from Hasson.73
196. However, Achmat (who was still in Palestine) asked Ensor, Geffen and Adler to “handle the matter” and suggested that the following questions be asked and answered:
“1. Can any evidence be provided by the people who are spreading the rumours or making the allegations that there is a connection between EE and any of the women named?
2. If there is such a connection is there any evidence that connects the women to Doron Isaacs beyond the rumours?
3. If the above questions are answered affirmatively then the rumours must be tested against the EE policy on sexual harassment and sexual misconduct.”
197. To my mind, there can be no question but that Achmat was removing these ‘rumours’ from the sphere of gossip and taking questions forward into the proper realm of behavior within Equal Education as an organization and EE policies. Setting up Terms of Reference along these lines was both appropriate and responsible. In short, were any of the five women connected with EE, was there any evidence connecting these women to Isaacs, if the women were within the orbit of EE and Isaacs was connected to these women then the “rumours” were to be tested against EE policies.
198. This Panel has heard criticism of the language of the Terms of Reference which set the parameters and fundamentally affected the outcome of the investigation. For instance, it is complained that the word “rumour” was used. But that is the wording and the language used by the complainant Hasson, when he wrote to Achmat – that there were “rumours” and that “ it is rumoured”. Hasson made it clear from the outset that he had no facts to place before Achmat (and later the Human Resources Subcommittee) and that he had heard only “rumours” from two persons – ‘KR’ and ‘KS’.
199. Achmat provided a number of cautions to the Human Resources Subcommittee74:
a. First, the need to uphold the privacy of the women concerned and the harm that an investigation with or without foundation may cause them and the organization and that protection of privacy was there to those who may need it and seek it. It bears reminding that privacy goes two ways – both as to the ‘accuser’ (if there is one) and the ‘accused’.
b. Secondly, that EE policies did not exist to uphold any standards of private morality in personal lives.
c. Thirdly, reference to the leadership role played by Isaacs in the country and that EE would have to consider any request he made for reparation [in the case of false allegations].
d. Finally, any evidence of misconduct would have to be referred to the entire Board for appropriate action.
200. It has been suggested that the format of these Terms of Reference by Achmat was to ensure that Achmat was influencing the outcome of the investigation because the questions and the comments by Achmat rendered the outcome a ‘non-starter’. But the reference to privacy, that the members of the Human Resources Subcommittee were to focus on Equal Education not private morality and personal lives, the question of reparation in the context of the profile of the subject of the ‘rumours’, the need for referral to the entire Board of Equal Education all seem to me to be appropriate. It is commendable that Achmat remained mindful of the need to protect the privacy of potential complainants and the possibility of utilizing an independent person. While we may be critical of Achmat’s reference to Isaacs’s contribution to the struggle for social justice in South Africa and the possibility of reparations, the Panel is mindful that the issue of reparation is not before us.
201. Both Professor Langa and Judge Satchwell are critical of Achmat’s reference to Isaacs’s contribution to the struggle for social justice as being inappropriate and potentially trespassing upon the independence of this Human Resources Subcommittee. The issue of potential reparations was neither before the 2011 Subcommittee nor before this Panel.
202. This last caveat or caution by Achmat confirms the understanding, articulated in emails of 2011 and verbally75, that this “examination of rumours” was then considered to be of the nature of a ‘preliminary investigation’ with final report to the Board which would take action should there be perceived to be any validity to any such complaints – as provided for in the EE two-stage procedure set out in the Disciplinary Code.
203. There has been some criticism about the specific exclusion of issues of private morality in personal lives and that such exclusion demonstrates a naïve and superficial understanding of sexual harassment and sexual misconduct. But there were no allegations – only “rumours”. On what basis could Achmat have tasked a Human Resources Subcommittee of Equal Education to examine all relationships of any nature, with any person, in any city or country of any employee? The mind boggles. At this stage, all that was asked – is there anything more than the “rumours” to which Hasson has referred which should take us into action in terms of Equal Education policies?
204. Following on this direction from Achmat, Ensor, Geffen and Adler included Sean Feinberg in their Panel because he was already a member of the EE Human Resources Subcommittee. It was decided to hold a meeting on Saturday, 11th June 2011. The meeting had to be held that day because Hasson was departing South Africa the following day.
Information proferred at the 2011 Hearing
205. The Hasson letter or submission of 8th June addressed to Achmat76 was attached by Achmat to the document convening the 2011 Hearing. Isaacs responded to the questions raised by Hasson in his own 14-page statement77. The draft agenda dated 9th June,78 indicates that each member was sent both “Joey’s comments” and “response from Doron”. That agenda indicates that the first interview would be with Hasson and thereafter with Isaacs.
Isaacs’ response to the questions
206. Isaacs had prepared a most detailed statement79 as well as a detailed commentary on each of the persons named by Hasson in his statement.
207. In his statement, Isaacs dealt with whether or not he had ever flirted with ‘KK’ and acknowledged that he had done so; whether he had transgressed a management meeting decision that Isaacs should not make contact with anyone involved in this case which he acknowledged that he had so transgressed but attached portion of the email to show that he had encouraged the recipient to “answer them [questions] freely” if ever approached; whether he had acted “in a way that leaders should not” and acknowledged that he had learnt “political lessons” which “could embarrass both me and, by extension, EE” and that he had engaged in “risky behavior”. In short, whilst not conceding any transgression of EE policies and procedures, Isaacs did admit to imprudent personal behavior.
208. Insofar as the five persons named by Hasson, Isaacs dealt with each one: He had exchanged in mutual sexual texting with ‘KK’; ‘NV’ was not and never had been part of EE; ‘NS’ never had any connection with EE; ‘KS’ did work at EE, completed the task allocated to her and moved on to complete a Masters at UCT; ‘TP’ had never had any EE connection.
209. Hasson informed the Panel that he had access to the lengthy response of Isaacs. He did not disagree with any portion of Isaacs’s response and indeed wrote to him subsequently indicating his relief that this was all behind them.
210. There is no indication that Isaacs’s response was tested by the Human Resources Subcommittee at the hearing or in any subsequent investigation by them. But, of course, what would there be to test? None, including Hasson had made a complaint; there was no allegation of any sort against Isaacs which anyone had shown to involve EE; there was no suggestion let alone prima facie evidence of wrongdoing against Isaacs. I shall deal later with with the propriety of the Human Resources Subcommittee making contact with the named women or approaching the members or staff of the organization.
Manual on the Policies and Procedures of Equal Education
211. The EE Manual provided for a ‘Management Committee’ made up of ‘The Coordinator, heads of departments and deputy heads of department’ and that the Coordinator80 has responsibility for dealing with disciplinary situations. By reason of Isaac’s position within Equal Education at the time (‘Coordinator’), I do not think it was inappropriate for Achmat, as the Chair, to remove Isaacs from any involvement in dealing with this situation.
212. The Disciplinary Code contains a schedule of disciplinary offences and this Report has already quoted and commented on the EE definition of “harassment” and “sexual harassment” and some of the forms which the latter may take. As already indicated, any employee experiencing or witnessing sexual harassment was required to make a report to a manager – but no one had done so save for Hasson who made it clear that he had no personal knowledge of any of that which he was repeating as hearsay or offering as speculation.
213. Prior to the actual meeting of the Human Resources Subcommittee, on 10th June 2011, Geffen emailed all other members of that Subcommittee with his concerns as to certain perceived “contradictions” in the sexual harassment section of the EE Code” which Geffen also felt was “generally unclear”81. He points to the contradiction between the penalty of dismissal in the schedule versus the informal procedure which could result in counselling; he finds a circularity in the declaration of a single act to be harassment an queries the position of a “single flirt”; the time periods of three days after reporting did not make sense to him; the procedures for lodging complaints against board members and directors “are not properly laid out” which he views as a serious shortcoming in the future when an elected board would take place when Board members would be in more daily contact with staff. In this case, Geffen’s concerns were not relevant to this particular hearing which concerned the ‘rumours’ but I view Geffen’s detailed commentary on this portion of the Code as indicative of the seriousness and concern with which he and the other members of the Human Resources Subcommittee viewed their responsibilities and approached the Hasson letter and Isaacs’s response thereto.
214. Although the Code provides that “false allegations will be also viewed in a serious light” it was never suggested that either Hasson had made false allegations . After all he had made no allegation of any sort which should or could have involved the Board or the Human Resources Subcommittee of EE. Indeed the report of the Human Resources Subcommittee was at pains to state that Hasson was thanked for his full participation in this process.82
Report of the Subcommittee
215. The first draft of the Report of the Human Resources Subcommittee was considered on the day of the hearing, 11th June and was subsequently amended.83
216. The crux of the final Report presented is as follows:
a. “This preliminary investigation was unusual in that no interested party had lodged a complaint or grievance against Doron nor was any evidence presented that anybody in any way felt wronged by Doron.”
b. “Based on written submissions to us and on the basis of the interviews conducted, the subcommittee finds:
i. That there is not a shred of evidence to support any claim or suggestion that Doron had an intimate relationship with an EE intern which resulted in her leaving the organization or that he at any time used his position of authority in EE to make inappropriate or unwelcome advances to women either employed by or associated with the organization.
ii. That there is no evidence to support any rumour or claim that any woman associated with EE, or in the process of being drawn into association with EE, or recruited to EE, ended this association on the basis of unwelcome advances by Doron.
iii. Furthermore, in relation to allegations of intimate relations with women with no connection to Equal Education, the committee took the view that Doron’s private life was not its concern.”
c. The subcommittee therefore concluded that there is no evidence that Doron has engaged in misconduct and there is no basis for any further investigation of this matter.”
Report to certain staff
217. Dated 13 June 2011, is a statement by the Human Resources Subcommittee of the Equal Education Board which was headed “strictly confidential” and available only to members of the Board, Management and certain other persons as agreed by the Board84.
218. After some discussion , it was finally decided with the Chair of the Board, that the Report would be furnished to the Board of the EE at the next board meeting and that the Report would be presented to management in hard copy but not for retention.
219. The Report of the Human Resources Subcommittee was not released to the entire staff of Equal Education because, as Achmat pointed out to this Panel, in the past when there had been disciplinary processes undertaken in terms of EE Policies and Procedures these had not been made public or shared.
220. Hasson commented that the report was (as far as he knew) sent only to the small number of people who had been involved in the “rumours”. He also pointed out that the organization had changed, was far larger, there had been a turnover in personnel, he did not himself feel close to members of the organization who were not involved in this particular issue, he did not even discuss it with them, Isaacs himself had a greater distance from the rank and file thereof. Hasson did not feel there was any element of secrecy in not making the Report available to every member.
221. However, the decision was taken that a number of identified persons would be furnished with an electronic copy of the Report on a confidential basis only. Achmat told the Panel that the Report was sent to the “sources of the rumours” which names had come from a list provided by Isaacs as also in conversation with both Hasson and Ensor.
222. Copies of the Report were sent to certain individuals with notes which I consider to have been courteous, warm and friendly and which warned of the importance of confidentiality.
d. On 20th May 2011, the Report was sent electronically to Daniel Mackintosh who replied “ What a relief ! I am glad this is all done, that Doron has been vindicated and we can all move on. … I would like to talk/email it over with you. Because the way that things happened was all a bit bewildering and the l cross over between social and professional lives it makes untangling things very complicated. It also feels like some difficult conversations are coming up.”85 .
e. On 14th June 2011, the Report was sent electronically to Adam Sack from whom there is no response in the documents.
f. On 14th June 2011, the Report was sent electronically to Joey Hasson whose reply included “I’m just so glad the process has taken its course and we can now move forward. For my part I will now need some reconnecting with Doron but I know our friendship is strong enough to overcome this.”86.
g. The Report was also apparently sent to Kelly Rosenthal.
Charlotte Fischer
223. The Report was also sent to one Charlotte Fischer. On 14th June 2011, there was an exchange of emails between Fischer and Ensor. Ensor stated that “[a]s you know a number of deeply malicious rumours have been circulating in and around EE, which a subcommittee of the Board has investigated.” Ensor invited a response if there were questions or issues.87 Fischer indicated that she wanted to speak with Ensor on the phone88.
224. At that time, Fischer did not seem to have any complaint about the composition of the Human Resources Subcommittee or the manner in which it carried out it’s task. The emails emanating from Fischer to Ensor are more than friendly and rather admiring, complimentary of Ensor’s son and seem to want to establish some personal connection. Her need seemed to be a personal rather than a written and recorded interaction.
225. There must have been some further and unhappy89 communication because on 16th June 2011, Ensor responded to Fischer thanking Fischer for raising her concerns. Ensor recorded that Fischer had “indicated to me [Ensor] that you have been approached directly by three women working in some capacity for EE who have experienced sexual harassment (ie unwelcome sexual advances) from Doron.” Ensor then stated “I wish these women to approach me directly, in complete confidence, so that this matter can be dealt with”. ( my underlining).
226. Ensor did caution that “I am not interested in any consensual relationships Doron may or may not have had with women inside or outside of EE”, noted for the record that “Joey submitted very full documentation to the subcommittee raising all his concerns and was interviewed. He has expressed his complete confidence in the outcome of the committee” and then cautioned “you have agreed with me that unsubstantiated rumour mongering has no place in an organization like EE and I hope I can count on your support in rooting it out where it may occur.”90
227. On 7th July, Ensor contacted all other members of the committee plus Isaacs and Achmat advising that:
“Charlotte contacted me and indicated that she thought that the work of the subcommittee was a sham and a cover up and lectured me on appropriate ways to deal with sexual harassment. She was particularly upset by the use of the word ‘malicious’ in my covering email in relation to rumour mongering … which she seems to think was directed at her and which she believes silences the women harassed from speaking out. Strauss Kahn seems uppermost in her mind. After a long conversation I basically insisted that she provide names of people she believed had been harassed, which she promised to do. She said there were three of them. Two days later Kira contacted Michelle and named three people. Michelle contacted me and I suggested to her that Kira had three options – to allow her letter to go forward to Zackie as it stood, or, secondly, if she was unhappy with its formulation, to amend it in such a way that it could go to Zackie, or, thirdly, withdraw the allegations altogether. In the end she decided not to pursue the matter, and I respect that. However, the matter with Charlotte Fischer remains open (formally speaking she has not got back to me) and we should decide whether I do go back to her and insist that she either speak out or hold her peace.” 91
228. Geffen responded that “[c]harlotte must be pressed to either make her allegations or withdraw them and apologise to Doron as well as the Management Committee and Board”92. Achmat took the view that “I am inclined to pursue a very strong cease and desist letter to Charlotte Fischer and if necessary her partner Daniel Mackintosh who also has a formal relationship with Equal Education” as well as “apart from the damage to the women and Doron, the disrespect for Equal Education and their failure to report it to us first alone requires some approach to them.”93 Adler was prepared to wait upon the board meeting but also wrote “I do think that Charlotte needs to be spoken to particularly if she continues to spread gossip and stories”94.
229. On 23rd August 2011, Ensor wrote again95 to Fischer reminding her that on 16th June:2
“you indicated to me that you intended to either obtain the names of three people, or encourage these three people to come forward to the EE Board subcommittee with complaints about Doron. It is now two months later. I have delayed responding to you until I had met with the subcommittee which conducted the initial investigation. I did this last night and I am now communicating with you to indicate that since these three names have not emerged in any form, and no complaint has been lodged, that this matter is now closed”.
230. On 3rd September 2011, a Human Resources report from the Remuneration Committee noted that Fischer had raised an objection to the report of the Human Resources Subcommittee, and had been asked for a formal response which had not been forthcoming and the matter was now considered closed96.
231. The correspondence which this Panel has viewed does indeed caution each and every recipient of the Report of the Human Resources Subcommittee against “malicious rumour mongering” in the context of the submission by Hasson of what he called “rumours”. I fail to see how this could ever be considered inappropriate or an attempt to stifle valid and justifiable complaints of harassment of any sort. What is cautioned against is limited to that which is described firstly as “malicious” which means having no basis in fact and animated by ill-will and secondly “rumour mongering” which is reportage of hearsay or not based on definite knowledge or statement of which there is no clear evidence. I can think of no sane person who would insist on the desirability of engaging in “malicious rumour mongering” and cannot view this as an attempt to shut down appropriate investigation of genuine complaints.
232. The correspondence indicates that Fischer claimed to Ensor that she had been approached by women who had been working for EE who had experienced sexual harassment by Isaacs and that Ensor had asked for these women to approach her “in complete confidence” but that no information had ever been furnished by Fischer. Ensor explained to the Panel, that she did speak directly with Fischer who did talk about having names of persons who had been harassed and that Ensor did ask for the names from Fischer which were never given.
233. Ensor has confirmed to the Panel that she had said to Charlotte that repetition of unsubstantiated allegations of misconduct against Isaacs would amount to defamation or slander. I do not think that she is wrong in her understanding of the meaning of the word or of the law.
234. Although Fisher made no appearance before this Panel, she was not finished with her allegations and denunciations:
a. In an article by Simon Allison of the Mail & Guardian, Fischer is reported to have said (on 22nd May 2018) that she had been rebuffed by Ensor when she called her to say that she had been in touch with a number of women and was willing to connect Ensor and those women because they had similar stories about harassment in the workplace. Fischer went on to say
“Paula’s response was that I could be sued for slander” and that “She referred to what I was saying in an email as unsubstantiated rumour-mongering. She named her twin concerns as sexual harassment and malicious rumour- mongering.” and “She refused to give me any assurance about how if the women came forward they would be protected. She requested that they contact her directly. They didn’t hear because they didn’t want to hear”.97
b. In an interview with Eusebius McKaiser on Radio 702 on 22nd May 201898 she identified herself as Charlotte Fischer and went on to say, inter alia:
CF: First thing I started following up on some of these stories and just asking women, listen I don’t.. you know.. this isn’t my business, I don’t want (inaudible) but I’m concerned because I’m in a role in the movement and um .. people have said these things to me and I wondered, if that is not true, that’s absolutely fine, but if it is true, I wondered if you wanted to talk about it with anyone.
I ended up speaking to 4 women, who all told stories that were so similar, I mean, and that is the thing that I also wanted to raise, is that some people have come forward and been very brave, but those tropes are similar to everyone. They often started online, sexual encounters, the stories I heard then were never of non- consensual situations, although I’ve heard stories since now that are, and the stories all happened when the relationship soured, and obviously the context of it but [inaudible] and it was a relationship that had to be kept secret and I want to be really clear about that, no one is suggesting you cant have a (inaudible) ever in any context, but the specifics of these situations is they had to be kept secret because the boss was cheating. And normally if you are having a relationship with someone in an organisation with a power difference, one of the ways to protect people is that you are open and honest, on the record, in a way that allows people to be protected both from unfair punishment, but also from unfair rewards. And in these situations women never had that, and actually in the end they were always threatened, they always had a situation where they were told that … to themselves, if they spoke about this they would never work again in the Western Cape NGO sector, and also had they had stories told about them, repeated tropes where “oh that woman is crazy, that woman is malicious, that woman is someone we cannot trust”. And there are only so many times you can hear women being described as crazy, or malicious, or not to be trusted. No one seemed to have a clear story of why, before you start asking questions.
EM: Ok, on Charlotte’s version she joins Equal Education and within minutes, a lot of women start speaking to her. She tells us that she then approaches Professor Paula Ensor with what she had heard from some of these women, women who had not of their own accord approached Paula. This, Zackie, is what Charlotte says how the conversation between her and Paula went when she approached Paula to investigate.
CF: I ended up calling Professor Ensor. By this point I had testimonies, I had some records, I even had an academic thesis that someone had written in part about Doron’s behaviour in social justice spaces. And I called Professor Ensor, I tried to meet her but she wouldn’t meet me. And I called Professor Ensor to say I’m not someone who has been harassed but I am in contact with people who are and have been, and um I didn’t call secretly, I called in my own name, I said who I was um and I want to make sure they have a chance to tell their stories if they want to, and I want some (inaudible) assurances of how they would be protected. And the response I got, I remember the first thing after I said that, there was this pause and Professor Ensor said to me, um what you are saying is slander, and you could be sued for slander.
EM: Wow
CF: And my response was, well, I’m not a lawyer but the first thing I
know about slander is that is has to not to be true
EM: Wow, and how did you feel when she responded as such because presumably you approached her because you thought that she would be an ally for vulnerable women?
CF: Absolutely, absolutely. Not just because she was a woman, but also because she was on the enquiry and I think it raises such an important point which is that, you know, I was 23 and incredibly naïve and I had identified that there seemed to be this perpetrator, but the truth is that perpetrators don’t tend to be able to get away with repeatedly perpetrating without having enablers.
235. Absent any interaction by Fischer with this Enquiry, there has been no opportunity to find out from Fischer why she followed up on “some of these stories” and how and why she thought she should “just ask women” if (as she says on the radio) she considered that “this isn’t my business” . We do not know anything about “four women” to whom she spoke and who may be the “people who have come forward and been very brave”.
236. It is not for Fischer to detail these “secret” consensual situations which had been “secret” because Isaacs was “cheating” on his then girlfriend and which secret consensual ”relationship[s] soured” . It was for the participant in these relationships to have made a complaint – either to Equal Education using its procedures or to this Enquiry.
237. Insofar as Fischer has related that these women were “always threatened”, it is difficult to understand, absent any information and guidance from the women involved, how or why there would be the need for threats or disparagement of women who had engaged in consensual relationships which had now soured. I can speculate and be alert to the power dynamics involved in situations of sexual harassment – but absence direct information from the persons actually involved to which Isaacs could respond, my speculation remains no more than that.
238. Interestingly, these “testimonies, records and academic thesis” which Fischer has claimed to possessed have never come to light. Of course an academic thesis is not evidence of anything. What these ‘records’ consist of remain known to her alone. As for the ‘testimonies’, they were never produced in writing or in person to Ensor. And, in any event, it was not really for Fischer to continue to insert herself as an intermediary and continue to make (then private and now public) allegations rather than have the persons with complaints utilize the opportunity offered by Ensor of a confidential reception.
239. I have some concern that Fischer appears to believe (as one learns from Radio 702) that, when she was told that she should either assist with bringing women forward with complaints into a confidential engagement with Ensor or that she should cease malicious rumour mongering, she believes that this was aimed at shutting down the voices of the women who had complaints. But it seems to me that this was very specifically aimed at Fischer and no one else – she was making allegations without producing any proof thereof. There was no attempt to control anyone else at all.
240. In view of the fact that this Panel has not heard in person from Fischer, who has neither taken up the opportunity to openly bring her hitherto public complaints to this Panel nor to openly challenge the version of Ensor, I can only accept that Ensor’s caution against “slander” cannot be viewed in any other context than that placed upon it by both herself and the correspondence itself.
241. Notwithstanding expression of her views in both print media and on the radio, Fischer has not approached this Enquiry in such open and accountable manner. We are therefore unable to ask her to clarify her public versions against the email correspondence which has been provided to us and which is somewhat different in tenor.
242. There is nothing which could suggest or be regarded as an attempt by Ensor at silencing the ventilation of grievances or complaints or covering up allegations against Isaacs or any other person. Fischer was doing no more than offering to produce complainants who never came to light. The correspondence emanating from Ensor indicates nothing more than her own commitment to confidentiality for complainants and hence a desire to protect the rights and dignity of vulnerable persons. Ensor cannot be criticized for wanting to arrange to meet confidentially with any woman who had complaints rather than using Fischer as an intermediary.
Report to the Board
243. The next Equal Education Board Meeting was held on 3rd September 2011. Present were 12 Board members including Ensor, Geffen, Feinberg and Isaacs and 4 non-Board members including Hasson and Adler. The minutes of that meeting make no mention of the Report of the Human Resources Subcommittee which had already reported to the Remuneration Committee.
244. However, a closed HR session of the same day minutes that a situation had arisen when Isaacs requested the Chair of EE to investigate possible allegations of sexual harassment, that a committee had been formed at the request of the Chair who had framed the Terms of Reference and “after careful interviews with Joey Hasson and Doron Isaacs established that there was no truth or basis to the allegations at all”. The minutes disclose concern about the spreading of rumours, the need for discussion with senior management as this may become public and could recur again.
245. Issues which had subsequently come to light were noted. These included the need to collect all information and submit it with a lawyer; that Hasson brought the “rumours” to the attention of the Board out of concern for EE and not maliciousness; that clarification was needed that there was no allegation of harassment made against Doron in his professional capacity; no formal complaint was ever brought against Doron and this investigation took place at his request; that Daniel Mackintosh had raised this in an interview for a position as a Constitutional Court clerk; that no further steps should be taken against either Fischer or Mackintosh since Doron had requested that the matter be closed off and anyway that the contracts of both Mackintosh and Fischer were ending soon and that management was working well together and “we want to move forward”.
The existence of a ‘conflict of interest’ between the members of the Human Resources Subcommittee in their capacity as members of the Subcommittee and their capacity as friends or colleagues of Isaacs.
246. It has been mooted in the media that one or all of members of the 2011 Hearing were ‘friends’ of Isaacs and misused that association or attachment to protect Isaacs against allegations of sexual harassment. This Panel is required, not only to evaluate the process followed and the merits of the findings of the 2011 Human Resources Subcommittee, but also to consider “whether any of the members of the subcommittee was subject to a conflict of interest.”
‘Conflicts of interest’
247. This phrase is usually intended to refer to a situation where a person is involved in or has multiple interests and serving one interest could involve working against or compromising another99. The conflict is found in the existence of a tension between an official position and a private position and a perceived or actual failure to compartmentalise or erect a ‘Chinese Wall’ between the two positions or two sets of interests. It is the failure to subordinate public or official duty to personal or private interests which amounts to a conflict of interests – ie the victory of personal concerns over public duty100.
248. In the present situation, the Panel is asked to consider whether or not any member of the 2011 Panel allowed friendship or collegiality with Isaacs to adversely affect the duty owed to Equal Education to independently and impartially conduct this investigation.
249. It must be understood that there is nothing wrong or improper with the co-existence of a private interest (such as friendship or collegiality) when one is required to exercise a public or official duty involving a person with whom one has a private interest. Persons may know each other, have been colleagues for years, have socialized and yet be required to make decisions in a professional or public or official capacity concerning the fate of that other person. For example, South Africa has had notable occasions where the most senior of Judges have presided in opposed litigation where a son or daughter in legal practice has appeared to argue the case - this has not been seen as improper and would only be so if, in fact, the Judge subordinated her or his duty to perform justice and apply the law to the personal affection for and advantage of the offspring.
250. There is cause for concern where such private interest is kept secret or where it actually comes into conflict with a public duty. The test is not the existence of the personal or private relationship but whether or not that private relationship appears to or does influence the objective exercise of official duties or has influenced objective professional judgment.
251. Some of those who may have challenged the work done by this Human Resources Subcommittee appear to be of the view that the mere existence of a personal connection (social, sporting, familial, work, religious and so on) amounts to a ‘conflict of interests’ which would disqualify anyone holding such connection from presiding in any hearing involving another connected person. But that is not the position taken by the law or general ethics.
252. This Panel therefore has to enquire whether or not the connections between Isaacs and members of the Human Resources Subcommittee, appears to have influenced the exercise of their duties towards Equal Education. In addition, this question must also be answered in the light of the evaluation of the processes and outcome of the work of the Human Resources Subcommittee.
253. I shall examine the connections between the members of the Human Resources Subcommittee and Isaacs, the Constitution and purpose of the Human Resources Subcommittee and thereafter the work actually done by the Human Resources Subcommittee and outcome thereof.
Connections between members of the Human Resources Subcommittee and Isaacs
254. An early question101 raised for consideration within the Human Resources Subcommittee itself was whether or this investigation should be conducted by an outside impartial person since each of the members of the Human Resources Subcommittee knew of or actually knew and worked with Isaacs.
255. There can be no doubt that each of the Human Resources Subcommittee members had some connection with Isaacs.
256. Ensor knew sufficient of the personalities involved to comment in an email on “the break up of Doron and Kira” and make her own suggestion to Doron that he write to Achmat.102 Although, Ensor therefore knew of aspects of Isaacs’ personal life and was in a position to speak to Isaacs about approaching Achmat, the connection seemed to have arisen more out of Ensor’s work on the Board of EE than out of friendship. Each of Ensor, Geffen and Feinberg were on the Board of EE and the Human Resources Subcommittee and could not have failed to have had contact with Isaacs. Geffen had been active in TAC and worked with Isaacs. Feinberg had been to school with Isaacs. Adler, having been recruited by Hasson and Isaacs, worked at EE as Operations Manager and therefore within the very organization of which Isaacs was a staff member. She also had personal engagement with Isaacs’ former girlfriend. Feinberg and Adler knew Isaacs through Habonim. There may be other interconnections but it is sufficient to state these are sufficient for present purposes.
257. Insofar as the Mail & Guardian has further reported on allegedly close ties between individual members of the Human Resources Subcommittee and Isaacs, we have not heard from any of the sources who spoke to the M&G and cannot take those allegations into account. Similarly, with regard to the strong views of the WLC on the Human Resources Subcommittee as persons who “blatantly and inappropriately agreeing to investigate Isaacs as they were no longer independent and able to do so in a manner that would elicit confidence and lend the process credibility”, these views are based on the content of submissions made by persons from whom this Panel has not heard. But this criticism fails to note that no member of the Human Resources Subcommittee has ever purported not to know of or know Isaacs. This criticism fails to note that the Human Resources Subcommittee was not asked to make a decision regarding Isaacs or his activities. This Human Resources Subcommittee was tasked with asking Hasson if he had any evidence to place before the Human Resources Subcommittee about the “rumours” which he had brought to the attention of Achmat.
258. Everyone from whom this Panel heard (except Ensor and Geffen) made it clear that the intermingling of professional and personal boundaries within and between those working for Equal Education arose out of a deep commitment to the work of the organization, the nature of the work involved, the challenges facing the organisation on all fronts and that it was often difficult to separate private lives from EE responsibilities.
259. Achmat commented to this Panel, that there was value in having the Human Resources Subcommittee situate in the Western Cape – the Board was widely scattered and not always immediately available to deal with matters of urgency . As far as he was concerned this already established Human Resources Subcommittee was populated by persons of known integrity and he described each one in terms of their capacity for dealing with peoples and issues
260. Nevertheless, Achmat did specifically say in his directive to the subcommittee that “[y]ou may choose to examine the Terms of Reference directly or seek that assistance of an independent, competent and mature person.” However, the Human Resources Subcommittee decided to continue in that capacity in the 2011 Hearing.
The composition and purpose of this 2011 Human Resources Subcommittee in relation to the hearsay “questions” raised by Hasson
261. First, I note that this Human Resources Subcommittee was not especially convened or populated with friends or colleagues of Isaacs for the purposes of his exoneration. This was a pre-existing governance structure of the EE Board. This Human Resources Subcommittee comprised three persons who were not EE personnel and one was a member of EE staff and existed for all Human Resources matters – not just that pertaining to the Hasson concerns about “rumours”.
262. Second , EE was not a large organization with a vast Human Resources department and personnel. The Panel has been told that the organization comprised no more than some 15 staff members at the time. As can be seen, the Human Resources Subcommittee relied on the voluntary services of three outside persons who performed a public service in assisting this NGO and one member of the staff (which understandably allowed for democratic infusion into the workings of an essentially top-down committee). It thus could hardly be avoided that members of the Human Resources Subcommittee would know each other and would each know Isaacs – to a greater or lesser extent.
263. Third, had these four persons recused themselves from continuing this Human Resources Subcommittee in this particular instance, they may have created an unfortunate precedent because then the subcommittee would have never have been able to have discharged their duties to EE because there would always have been an issue of some knowledge, association, interaction or even friendship with staff – as is the case with most organisations or businesses.
264. Fourth, members of the Board of EE were scattered throughout the country, had their own professional lives to follow and would not necessarily available to supplement this Human Resources Subcommittee which had the advantage of all being based in Cape Town or the Western Cape.
265. Fifth, there were no allegations or complaints emanating from anyone against Isaacs.
There was suggestive innuendo which were termed “questions”. This was not a disciplinary hearing as provided for in the Disciplinary Code. It was not possible at this stage to convene such hearing since, after all, no one had laid a complaint and there could at this stage be no formal charge against Isaacs as envisaged in the Code.
266. Sixth, there is nothing unusual in providing for an internal preliminary investigation or two-stage process as did the Equal Education Disciplinary Code. All organisations of whatever staffing capacity have such internal investigations or hearings where investigators or adjudicators know the persons making complaints, those who face the complaints and those who attempt to prove or disprove the complaints. That is usually the role of a Human Resources department.
267. Seventh, where an organization is confronted only with so-called ‘rumours’ then it may be both impractical and undesirable for any organization to set up an enquiry with no knowledge as to the existence of such rumours, the source thereof, the basis therefore, the grounds thereof and author before determining whether or not such rumours even deserve an enquiry – whether in terms of a disciplinary code or otherwise. Such initial exploration must necessarily be an internal process involving persons from within the organization - i.e. Board and Human Resources Subcommittee thereof (whether or not they are known to each other as internal or external management and internal or external staff).
268. In the present case, what had been presented to the Chair of the Board, Achmat, was a hearsay ‘rumour’ and four speculations involving innuendo called “questions”. Achmat had then asked the Human Resources Subcommittee to consider three questions pertaining to those rumours. These Terms of Reference were specific questions to which the answers might have led to a proper and full-blown enquiry – in terms of the Disciplinary Code or otherwise - which might appropriately have involved external personnel. But, at this stage, there was insufficient material for either or internal or external personnel to examine
269. Eighth, as Achmat has pointed out an outside investigation “carried the risk of an unwarranted intrusion into parts of women’s private lives which they themselves might not wanted to reveal”. This is an important observation. Not one of these women had ever made a complaint to any member of the Board or Management of Equal Education. There is no indication that they knew that their names were being bandied around by Hasson in response to suggestions from ‘KR’ and “KS’ or anyone else. This invasion of their privacy was extremely intrusive. The questions being posed about these women by total strangers to total strangers concern alleged romantic or sexual intimacy – to none of which had they given any consent. I shall deal with the need for regard for privacy and intrusion thereon at a later point in this Report.
270. Furthermore, as the submissions of the Human Resources Subcommittee have pointed out, if the panel had found any prima facie evidence to justify taking the matter further they would have handed it over to an independent disciplinary enquiry. It is my view that the Terms of Reference required firstly, that a connection with Equal Education had to be established with any one of the named women and it was not. Only then would it have been necessary to embark on the second question of Isaacs’ connection with any one of the named women. Ultimately, if both of those questions were answered in the affirmative, only then could any enquiry into alleged sexual harassment have taken place and this would, in terms of Equal Education’s own Code have been required to have been handled by the appropriate person(s) constituting a disciplinary enquiry.
271. Ninth, one must ask whether there was any need for ensuring that the composition of this Human Resources Subcommittee should have particular expertise or sensitivity to the conduct of an investigation into sexual harassment. This Panel knows from the documents that this Human Resources Subcommittee was a standing structure and not especially or particularly created or populated for purposes of hearing the concerns of Hasson. From Achmat, we know that the composition of this Human Resources Subcommittee was mainly based on geographical and convenience considerations.
272. There is no indication that any thought was given in these particular circumstances to any particular expertise needed to conduct an investigation into alleged sexual harassment. However, this Human Resources Subcommittee was not investigating allegations of sexual harassment. This Human Resources Subcommittee was asked to find out if there was evidence of any connection between EE and five named women, if there was any evidence connecting the five named women and Isaacs. Only if those two questions were to be answered in the affirmative should the “rumours” be tested against the EE policy on sexual harassment and sexual misconduct.
273. Tenth, there has been criticism that this Human Resources Subcommittee should have known that complainants would have been hesitant to come forward with their accounts to this disbelieving and conflicted Subcommittee. But this Subcommittee was not tasked with receiving accounts of any behavior from anyone at all. Hasson and his sources (‘KR’ and ‘KS’) had proferred “rumours” (as described by Hasson). All that this Subcommittee had to do was to find out if there was any evidence or if the “rumours” were just gossip. Hasson had the rumours and so he or his sources were to supply the evidence. There was no general advertisement to anyone asking them to come forward – because there was no enquiry into allegations of sexual harassment or misconduct which required such an enquiry in terms of the Equal Education policies.
274. In short, the Terms of Reference required this Human Resources Subcommittee to examine the first two hearsay ‘questions” posed by Hasson. He had no personal knowledge and offered nothing. Isaacs answered. The upshot was that issues of sexual harassment or misconduct did not arise. No special skills or experience in this area ever arose. “Rumours” were barely that and nothing was shown of any EE connection with five named women or of Isaacs connection with any of these women. The “questions” themselves were never supported, substantiated, corroborated. One could say that they died a natural death in the absence of anything more than hearsay and supposition.
275. Finally, insofar as the composition of the Human Resources Subcommittee was concerned, all those involved (Achmat, Hasson and Isaacs) expressed and continue to express faith in the integrity and independence of those individuals who constituted the subcommittee and, as Achmat put it, he had no desire to “undermine the integrity and independence" of the Human Resources Subcommittee. And importantly, at the time none of those involved in sourcing or spreading or discussing the rumours expressed doubts about any member of the standing Human Resources Subcommittee being the body hearing Hasson’s concerns about ‘rumours’. Neither Hasson, Fischer, Mackintosh, Sack or Rosenthal ever questioned the composition of the Human Resources Subcommittee or raised the possibility that any member thereof was possibly vulnerable to any failure to ensure that private interactions overcame organizational duties nor, after the hearing, was there any complaint made that they had subordinated their duties to Equal Education to their private relationships with Isaacs.
Evaluation of the processes followed and the merits of the findings by the 2011 Human Resources Subcommittee
Sources of and context to the ‘rumours’
Obviously this Panel cannot know the full story because it apparently involves people in personal or sexual or professional or comradely relationships over time and emotional and intellectual feelings and perceptions have changed over the past seven or more years.
‘KR’ and ‘KK’
276. According to Hasson’s submission to Achmat , a named individual (‘KR ’) was the source of the story that Isaacs and ‘KK’ had interacted sexually over the internet. Yet ‘KR’ did not come forward to Achmat or to the Human Resources Subcommittee – although her name was mentioned in the written submission of Hasson. However, ‘KR’ did speak under her own name to the Mail & Guardian and she allowed her name to be used in both the written and online versions of the M&G. She claimed no anonymity or need for confidentiality. She has not come forward to this Panel. In any event all that ‘KR’ could have offered the Human Resources Subcommittee was hearsay about a third person, ‘KK’, from whom this neither the Human Resources Subcommittee nor this Panel has heard.
277. There is no indication that ‘KR’ thought it courteous or prudent to contact the woman whose name she had used (‘KK’) to ask if her name could be utilized in this way. Similarly, there is no indication that ‘KR’ asked ‘KK’ if she would or would not come forward to Hasson himself. There is no indication that Hasson thought that he should speak to ‘KK’ or make contact with her before making such report to Achmat as Chair of the Board. Most importantly, the record is entirely silent on the views of ‘KK’ in having portion of her intimate and private life revealed as ‘rumours’ to an undisclosed number of persons within and perhaps without Equal Education and ultimately to a Human Resources Subcommittee of apparent strangers.
‘KS’
278. According to Hasson’s submission to Achmat , a named individual (‘KS’) was the source for rumours about two of the women named by Hasson raised in his “questions” to Achmat.
279. We do know that on 1st June 2011, ‘KS’, a former girlfriend of Isaacs, wrote to Adler, subsequently a member of the 2011 subcommittee, in which she said:
“I can’t see you because every day new girls are coming to me with stories about where they kissed Doron, when Doron had internet sex with them, when Doron went to their friends’ houses and hit on them, when people went on dates with them. ‘JK’, “LM’, ‘CD’, ‘IJ’ who wanted a job at EE and he went to her house, a journalist from ETV. I suspect tried to kiss her), ‘NO’ also. I know that his affairs started at least as early as 2009, and went right up until the last week of our relationship. I am so full of pain that it is turning me into an ugly, vengeful person. I have done and said terrible things in the last few days.
…..
If you hear any of these rumours, you should know that he sent me an email last week saying that if I ruined his reputation he would ruin mine, and that is what he is trying to do. There is no point in defending myself to anyone else at your office, particularly as ‘’KL’ now hates me because I told ‘JK’ about his recent affair in America, and I told him about ‘JK’s affair with Doron while Doron was with me, and I told ‘LM’ about
‘NO’s emotional affair with ‘ PQ’. ….”103
280. Yet, as the source of hearsay rumours to Hasson, ‘KS’ did not come forward to Achmat or to the Human Resources Subcommittee. In any event, it seems that all that ‘KS’ could have offered the Human Resources Subcommittee was hearsay about third persons (we do not know whom) from whom neither the Human Resources Subcommittee nor this Panel has heard.
281. There is no indication that ‘KS’ thought it respectful or advisable to contact the women whose names she gave to Hasson to ask if they gave her permission to use their names and identities in this public way. Similarly, we have not heard that ‘KS’ asked any of these women if they would or would not come forward to Hasson himself. There is no indication that Hasson thought that he should speak to the women whom he named or make contact with them before making such report to Achmat, as Chair of the Board. Most importantly, the record is entirely silent on the views of ‘NV’, ‘NS’, KS’ or ‘TP’ in having portion of their intimate and private lives revealed as ‘rumours’ to an undisclosed number of persons within and perhaps without Equal Education and ultimately to a Human Resources Subcommittee of apparent strangers.
Urgency
282. A sense of urgency was expressed by all from whom this Panel heard - “put them [the rumours] behind us and get through this”104, a need “to stabilize things in EE”105 , “this be closed off as soon as possible”106 and that “we act swiftly to contain the situation”107. Achmat described the situation to the Panel as “ urgent”.
283. Not only was the Chair of the Board, Achmat, out of the country but the person prepared to bring the so-called “rumours” to his attention , Hasson, was about to go on a sabbatical and leave South Africa on 13th June 2011.
284. Everyone in the apparently small group involved in the ‘rumours’ perceived the need to move swiftly. So the process proceeded apace. Rumours emerged and small group(s) had discussions; there was at least one meeting of a ‘management’ group on 2nd June resulting in an email of 3rd June by Adler’; Ensor (as a member of the Board and as Chair of the Human Resources Subcommittee was approached shortly thereafter); Ensor wrote to Achmat as Chair on 5th June advising Achmat this this matter should be investigated; Isaacs and Hasson exchanged emails on 5th June as to whom should approach the Chair; Isaacs did approach Achmat on 6th June; on 7th June Achmat had a lengthy discussion with Hasson; the next day 8th June Hasson sent to Achmat his submission which was in the form of a complaint for investigation; that same day , 8th June, Achmat contacted the Human Resources Subcommittee setting out the background, perceived difficulties and cautions and giving them the Terms of Reference and also attaching the Hasson submission; on 9th June, an agenda was prepared indicating that both Hasson and Isaacs were to be present and have their say; Isaacs had also prepared a response which was available on that day; on Saturday 11th June the hearing was held.
285. Within less than ten days, the entire process of dealing with ‘rumours’ which had now erupted within this coterie of EE persons had been implemented.
286. On the one hand, this indicated the concern of all those involved and the perceived need to treat these ‘rumours’ as ones of significance to the organization and deal with them without any delay. On the other hand, delay may have permitted a more deliberate planning of an intervention less dependant upon the presence of Hasson (who actually did not himself have anything to say) and involving a more nuanced approach.
Hasson’s Questions to be investigated by the Human Resources Subcommittee
287. What was presented to the Human Resources Subcommittee were called ‘rumours’ by Isaacs108 and by Hasson109. But it is somewhat doubtful that the remarks which were placed before the Human Resources Subcommittee even constituted ‘rumours’ within the definition of “a currently circulating story or report of unverified or doubtful truth”110 Hasson raised one allegation and what he called four “questions” which he had asked of Doron and which he thereafter asked of Achmat. Each of Hasson’s reference to the five is a series of partial averments, suggestions and questions. There is no averment of any fact, verifiable or doubtful, which even elevates these questions into ‘rumours’.
288. The Human Resources Subcommittee was not asked and could not be expected to hold a disciplinary enquiry or do much more than see if the “questions” themselves had any basis for being asked at all. In a sense, it was the questions which were on trial – the issue before the Human Resources Subcommittee in their Terms of Reference was whether or not these questions were any business of EE and whether they should be asked of Isaacs or answered by him at all. In reality, the Human Resources Subcommittee was not considering allegations against Isaacs and there was no prima facie allegation against him. The Human Resources Subcommittee was doing no more than giving consideration to the relevance of these “questions” for Equal Education.
289. It was in this context that each member of the Human Resources Subcommittee informed this Panel that this was a preliminary and internal investigation to be kept (at this stage) within the organization. It was of the nature of this investigation to ascertain whether or not there was any substance to ‘rumours’. Only if there was any such substance should this matter be escalated further to the Board. Prior to the meeting of this Human Resources Subcommittee, an email was exchanged which said “once we have finally completed our business we can write a report to Zackie and make a recommendation on how to proceed. I think if it does come to a stage where there are formal charges to be answered, the Board would need to bring in someone who has no links with EE”.111
Absence of a complainant or complaint of sexual harassment
290. From the outset, the absence of a named grievant or complainant was identified as an unusual aspect of this enquiry. This appears in the directive from Achmat appointing the Human Resources Subcommittee to consider the questions and in the emails exchanged and the Report of the Human Resources Subcommittee.
291. The Terms of Reference formulated by Achmat did ask for provision of evidence “by those people who are spreading the rumours or making the allegations” but no such persons had come forward. It is unlikely that those who were involved in what Hasson had called the “rumours” did not know of the contribution they could make. After all, Achmat and Hasson were in touch and these persons (Sack, Hasson, Fischer, Mackintosh, Kelly Rosenthal, Kira Schlesinger). Perhaps they did not take ownership of the ‘rumours’ when it came to the crunch? Perhaps they appreciated that they had only hearsay information which they had been repeating their as their “rumours” rather than being able to produce any direct evidence? This Panel does not know because we have not been given any reason for the absence of any of these persons in coming forward at any time.
292. No woman or man, no employee or associate of Equal Education had lodged a grievance as provided for in the Disciplinary Code nor had complained to a line manager or had come forward as envisaged by the Code. Accordingly, the explicitly enunciated process in the Disciplinary Code did not really fit the issue with which the Human Resources Subcommittee was now confronted.
293. Ensor explained to the Panel that the focus of the investigation was the “four vague questions” posed by Hasson. Geffen said that he found the absence of an actual complainant meant that the Board could not proceed with an enquiry in terms of the Policies of the EE. It is almost as though the Chair and the Human Resources Subcommittee were being asked to fit a square peg into a round hole and, on finding that the ‘rumours’ could not fit into the Disciplinary Code, felt that they had to create a new process which was particularly unsuited to that which already existed – i.e. the Disciplinary Code.
294. This is one of the reasons why I find the Terms of Reference devised by Achmat to be useful – he brought the “rumours” within the purview of the organization and sought a link between the organization and the named women and then a link between the named women and Isaacs. Nonetheless there was only Hasson with his hearsay “questions” (rather innuendo and postulations) about persons whom he did not seem to know (else why ask these questions) and without even the helpful tongues of ‘KR’ and ‘KS’ to use on his behalf.
Hasson as an intermediary
295. It seems that all members of the Panel perceived Hasson as some sort of go-between. But no one was clear on whose behalf he was acting.
296. Geffen took the view that it was inexplicable that Hasson presented himself as an intermediary for women who did not or chose not to complain and, as a result, Geffen said that he felt some skepticism that Hasson saw his role to act as intermediary for persons who failed themselves to present themselves either as sources (‘KR’ or ‘KS) or who failed to present themselves as complainants (‘KK’, ’NV’, ‘NS’, KS’, ‘TP’).
297. Feinberg named the two women (‘KR’ and ‘KS’) as the sources but neither was active in or employed by Equal Education and therefore had no recourse to the Equal Education Code. In this sense, he perceived Hasson as the ‘intermediary” which did not resolve problems because there was still no complainant.
298. Ensor saw Hasson as the “purveyor” of these rumours or allegations. He had brought the “full suite of rumours which were circulating” to the attention of the Chair of the Board and to the Human Resources Subcommittee.
299. But I find it difficult to understand the content of the “rumours” in the sense of allegations which anyone could begin to investigate and therefore I doubt the value of purveying them onwards. Notwithstanding Achmat’s rather careful Terms of Reference, there was no content or context which claimed to involve Equal Education and Hasson could give no information about the connection of these women with the organization. The question then becomes for what purpose he had forwarded information about persons whom he, a longtime employee of Equal Education, did not even know and did not even contact!
300. Adler, as a co-worker of Hasson, explained that Hasson was perceived by his fellow workers as “approachable” and that people within EE would go to Hasson for help and advice. This might explain why Hasson became the spokesman for the persons interested in and wanting to pursue the “rumours”. No one mentioned the word ‘fall guy’.
301. However, it is difficult for myself to be as sanguine as was the Human Resources Subcommittee on the role of Hasson. His submission to Achmat makes it clear he has no personal knowledge of that which he raised. He repeated hearsay emanating from two persons (‘KR’ and ‘KS’) who were themselves supposedly repeating hearsay from or about other women.
302. The greatest difficulty, of course, is that there is no indication that anyone wanted Hasson to be an intermediary on her behalf. There is no indication that there was any complaint which any woman wanted to be brought to the attention of the Board or the Chair or the Human Resources Subcommittee in order to assist them or to prevent any untoward behavior on the part of Isaacs.
Absence of an approach to named individuals by the Human Resources Subcommittee in 2011
303. Achmat told the Panel that he had asked Hasson to prepare his submission and that he had also asked him to ask any person to come forward to complain because otherwise there would be no complainant who alleged that Isaacs had engaged in inappropriate sexual conversation or other conduct. He was clear that he made this request because otherwise , at best, Hasson’s allegations would be no more than unsubstantiated and only partially formulated hearsay.
304. Hasson did not himself contact any of these women for their consent or approval in using their names in any capacity or for any reason whatsoever. He asked no one if they gave permission for himself to approach the Chair of the Board of Equal Education and use their names with his “letter”. Hasson did not even ask any of them if ‘KR’ or ‘KS’ was or was not a reliable source. He did not speak to any one of these named women to check on the innuendo contained in his “letter” with his “questions”. Hasson did not ask any one of them if they wished to come to the hearing of the Human Resources Subcommittee.
305. Furthermore, it appears that Hason did not make it clear to those persons from whom he had learnt of the “rumours” that the onus was on them to provide some substance and evidence for these “rumours” for the Human Resources Subcommittee hearing of which he (and obviously from the correspondence) these persons knew and which he had been requested by Achmat to provide.
306. The Human Resources Subcommittee did not approach any of the five named women to find out if they knew of the ‘rumours’ circulating about themselves, wished to assist the subcommittee or participate in that process or give answers to any questions posed or indicate agreement or disagreement with the alleged “rumours”. Ensor commented to the Panel that they did not set out to be the investigators of those “rumours” emanating through Hasson for which neither he nor anyone else established a foundation.
307. It is worth noting that neither Ensor, Geffen nor Feinberg knew any one of the five women named in the Hasson submission. However, Adler did know one (‘KK’) as a former quasi- volunteer who did interact with some of EE members, had been at school with another (‘NV’), knew that (‘KS’) was one of the interns whose task of completing an annual report was completed ( interns came and went as and when their time ran out or their task was finished) but had not heard of two of the names (‘NS’ and ‘TP’).112
308. None of those women was an Equal Education staff member. This, of course, would have compounded the difficulties in making an approach towards a person with whom EE had no relationship or who may never have sought any such relationship with EE.
309. All the members of the Human Resources Subcommittee have joined in a submission pointing out that each has described the great discomfort which they would have felt in reaching out to women who had not lodged complaints directly or indirectly and where the only grounds for approaching any one of them was discomfort expressed by Hasson about “rumours’ he had heard. Absent any concrete fact or any prima facie evidence presented to the Human Resources Subcommittee, the Subcommittee felt that contacting any one of these women would have been a serious breach of their privacy.
310. Ensor mentioned that that “containment” was important for the benefit of those women whose names were being mentioned and that the subcommittee was not about to embark upon a “fishing expedition” in search of complainants. Adler felt “cautious about phoning up people to ask who had and hadn’t had sex with someone. This seemed an invasion of their private lives.”
311. I can find no basis upon which the 2011 Human Resources Subcommittee should or could have made contact with any one of these named five women.
312. None of these named women were staff members or current volunteers or current interns at Equal Education. Two had been connected with EE in the past – ‘KK’ and ‘KS’. The Terms of Reference first required that the Human Resources Subcommittee receive evidence from those persons “spreading the rumours” whether or not there was an EE connection with any of the women named. Yet neither of ‘KR’ or ‘KS’ or any of the other persons included in emails about “rumours” and who received copies of the Human Resources Subcommittee Report and responded thereto in a manner which indicated they were party to the “rumours” ever came forward with anything approaching prima facie evidence as to any such connection. There was no evidence received because the supposed sources of “rumours” did not come forward.
313. The second leg of the Terms of Reference required the Human Resources Subcommittee to receive “evidence” that connected Isaacs with these women if they had a connection with Equal Education. Such ‘evidence’ had to go “beyond the rumours”. Yet not one person came forward with any information, let alone evidence, concerning such connection between Isaacs and any one of these women. Those who were party to the “rumours” included several of the names already mentioned – those who spoke to or repeated hearsay to Hasson, those who gossiped and rumour mongered and who expressed delight when all was cleared up by the Human Resources Subcommittee Report. None of these people presented anything other than “rumours” and Hasson presented nothing more than speculative questions which added up to nothing.
314. Insofar as an approach to any one of the named women is concerned, I take into account that this was really putting the cart before the horse. The Human Resources Subcommittee was first, required to receive evidence over and above rumour as to the existence of any EE connection and secondly, to receive any evidence over and above evidence as to the existence of any connection with Isaacs. Neither of these tasks required any intrusion into the lives of these unsuspecting women (who did not know of the bombshell which would years later overtake their lives). The “rumour mongers” were the ones who could elevate “rumour” into “evidence” on these two issues. Only if both issues were positively affirmed by evidence would it be necessary to have regard to the third stage - any contraventions of sexual harassment or sexual misconduct in which this Human Resources Subcommittee had already agreed they would play no role which should be conducted by an outside disciplinary enquiry.
315. I do not believe it would have been appropriate or responsible or commensurate with their responsibilities for any one of the Human Resources Subcommittee to have approached any one of the five named women to enquire about her connections to Equal Education (past or present), her personal or private or romantic or sexual interactions with Isaacs, her preparedness to participate in a sexual harassment disciplinary enquiry.
316. If any one of them had been members of EE, they would have known the Code set out in the Manual and would have either elected or not to utilise the procedures in that Code. If there was anything they felt reportable, they had obviously not wished so to do. On what basis could any member of the Human Resources Subcommittee have approached them now to violate their chosen privacy?
317. If they had no connection with EE, they would not have known the Manual or Code but they would also have had no reason to appreciate an approach from an organization to which they had neither involvement nor loyalty. And, it should be pointed out, the first issue in the Terms of Reference would already have been answered in the negative and those Terms of Reference required both issues to be have been answered affirmatively before any engagement with allegations of sexual harassment to then begin. In short, if there was no connection with EE then there was really no need to look for a connection with Isaacs.
318. For all of these women to receive an approach on behalf of the Human Resources Subcommittee would have been unwanted and unsought, certainly an invasion of privacy, possibly experienced as intimidating and threatening to be called before a ‘hearing’.
319. That these would be reasonable and rational and entirely expected responses was entirely born out by the experience of this Panel itself. We decided that one member of the Panel (Professor Manjoo) should make a private approach to each of the five persons who were named in Hasson’s submission. This was done and met with an equivocal response. One person was most distressed and angry that her name had been mentioned and that she had been approached at all; one person never responded; another was unconcerned at our approach but made no complaint to us; two did indicate that they would do nothing without total confidentiality and were not prepared to participate in person in our Enquiry which suggests that they would not have been happy with the use of their names by Hasson in his complaint.
320. It would seem that (seven years earlier when any distress or trauma may have been more sensitive) the Human Resources Subcommittee would not have received any different response than did this Panel.
Confidentiality
321. It would certainly seem that every care was taken to ensure confidentiality about the ‘rumours’, the report to the Chair, the Terms of Reference, Hasson’s submissions and Isaacs’ response and the hearing itself. This was understandable.
322. Breaches of policy and practices which might amount to contravention of a Disciplinary Code should not ordinarily be given public ventilation both within or without an organization. Confidentiality, in respect of both an accuser and an accused (or complainant and respondent) needs to be recognized in cases of alleged sexual harassment. In this case no woman had come forward as a complainant or grievant. There were rumours and questions but nothing more and the women and men who were the subject matter thereof were so much the more entitled to privacy. Speed was seen as vital since the Chair was abroad and the person raising the issues, Hasson, was going away within two days of the hearing actually taking place.
323. What was underway was had been identified as ‘preliminary’ - a precursor to a possible disciplinary enquiry. Absent positive answers to the first two questions identified in the Terms of Reference, no such enquiry would or could take place. No one can be criticized for treating this entire affair as one which should not be disclosed except to those intimately involved.
324. Yet, it may well be that it was this entirely rational and justifiable approach which led to those outside the intimate circle of knowledge to feel aggrieved or disregarded - and which might have led to the festering of certain issues. There were those who had said they felt vengeful and there were those who were obviously in touch with Hasson but did not come forward and there were those who were emailed even before the subcommittee met about “rumours” and all of these persons may have had emotions which they have allowed to inform their later actions.
A public call to complain
325. It has been suggested by the WLC that the Chair and the Human Resources Subcommittee failed to make the existence of this hearing concerning the Hasson/KR/KS rumours or complaints known to other persons and thus no staff, interns or volunteers were encouraged to come forward.
326. The difficulty with this suggestion is multifold. First, if any staff/intern/volunteer had a complaint they could use the Equal Education policy, procedure and Code to make their complaint as was provided. Second, there is no suggestion how such public notice should have been disseminated – “ will anyone who has a complaint of sexual harassment or sexual misconduct against X please come forward”. Well, that would certainly have resulted in a significant amount of publicity and the very payment of reparations to X which Achmat had wanted to avoid. Third, there were a number of persons with knowledge of and involvement in the “rumours”. At the very least these were Joey Hasson, ‘KR’ and ‘KS. There were others who had been party to earlier emails regarding “rumours” - Brad, Dimitri and Yoliswa. Each of these persons was in contact with Hasson (at the very least). It has not been explained to us and it is unknown to me why they never gathered together their “evidence” so that the Human Resources Subcommittee would then have something to refer to a Disciplinary Hearing.
327. It has been suggested that the 2011 Human Resources Subcommittee failed in their duty of care and responsibility towards the complainants. But nothing has been offered to suggest any such duty of care:
a. Who are these complainants? Did they work for EE? Were they associated with EE? Had any one of them chosen to utilize the Equal Education policies and procedures?
b. How could the Human Resources Subcommittee find them if they were so anonymous? Could the Human Resources Subcommittee contact these persons if their private lives were private and they had chosen to keep them such?
c. Could the Human Resources Subcommittee contact any one of them when they were no more than the subject of malicious rumours about them (not Isaacs)? Should the Human Resources Subcommittee not wait for evidence of some sort to be given or some detail or evidence ( as to connection with EE, connection with Isaacs) before even contemplating any duty towards anyone? And before recommending that the Equal Education Code and Practices and Policies be utilized?
328. I have been given no basis for understanding a “duty of care” by Equal Education towards these unknown persons. After all, neither this or any other Human Resources Subcommittee of a private organization, has a general duty of care or responsibility towards the man or woman in the street – save insofar as the organization has a connection with such person or an employee has a connection with such person. That was the purpose of the Human Resources Subcommittee – to establish the connection between a specific employee and the women whose names were bruited about and which connection was not merely private but which involved Equal Education itself.
Intervention by Achmat
329. At 10h58 on Saturday 11th June, Achmat emailed each member of the Human Resources Subcommittee involved in the hearing. He referred them to a link “which you might find useful” which appears, from the papers before this Panel to be a link called ‘whats wrong with adult sexting’.
330. When asked, Ensor and Geffen indicated they had had no regard thereto – which is plausible considering they were in the midst of a hearing which appeared to have nothing to do with adult sexting. Feinberg did not remember. Ensor did not read the link to sexual texting.
331. Achmat explained to the Panel that he thought it was appropriate to send the subcommittee the link to the New York article on ‘sexting’ since this was a “new sphere” of activity and he was trying to “broaden the understanding” of the Human Resources Subcommittee. He explained that his intention was to suggest that the boundaries of what was permissible and impermissible sexual contact had shifted.
332. It is my view that it would have been most inappropriate of Achmat, Chairperson of Equal Education, who had handed investigation of this matter over to the Human Resources Subcommittee to have been tendering or evidence or information or guidance to the very committee entrusted with such an issue. It matters little whether or no this information could ever have been useful. It matters little whether or no this information would have assisted any person who might be giving consideration to a complaint regarding sexting. Achmat might have been intruding upon the merits of a process in which as Chair of the Board he should have played no part, in which he purported to play no part and where his position as Chair of Equal Education should have truly resulted in his recusal from any discussions leading to any findings of this hearing. This was, after all, a preliminary investigation to determine whether or not disciplinary proceedings should follow in accordance with the Code.
333. It is the view of Professor Langa, that it showed that Achmat was highly concerned and wanted the Human Resources Subcommittee members to be abreast of new developments with regards to sexual harassment and what is potentially harmful in adult sexting. Professor Langa therefore does not take the view that this intervention in referral to the link might have been inappropriate but rather that it may have been useful, informative and assisted the Human Resources Subcommittee in addressing important issues pertaining to sexual harassment if this issue had ever been reached.
334. However, the Terms of Reference required only the first two questions /issues to be dealt with by the Human Resources Subcommittee: whether evidence was received of any connection between the named women and Equal Education and whether evidence other than rumour was received of any connection between Isaacs and these named women. Only once these tasks were affirmatively completed and answered would the issue of sexual harassment be considered. Achmat’s contribution became moot. (But he did not then know that nor did he then know that the Human Resources Subcommittee itself had decided that if both the first two issues were answered in the affirmative that the third question would not rest with them but would go to an external disciplinary hearing.)
Evaluation of the merits of the 2011 findings of the Human Resources Subcommittee.
Limitations of the Terms of reference
335. Merits of the findings of any examination are only as good as the process followed to arrive at the result. Similarly, the process followed is usually only as good as the parameters permitted to that process.
336. Yet the Terms of Reference given by Achmat to the Human Resources Subcommittee focused on the receipt of evidence [my underlining] underlining those rumours. He specifically wanted “more than rumours” from those who were circulating. He did not direct or suggest any independent investigation.
337. I do not find that unreasonable. The issue at hand were the “rumours” which were circulating - it was important to know if there was anything more than the “rumours”, to see and hear actual evidence, and this could only come from the sources of such rumours who were either informing Hasson or named by Hasson.
338. Achmat was the Chair of the Board of EE. He was obliged to have regard to the Policies and Procedures Manual of Equal Education and the Disciplinary Code as set out therein. In setting out the Terms of Reference for the Human Resources Subcommittee, he was constrained by the Policies and Procedures of the organization of which he was chair. That would require some substantial material other than rumour before proceeding further.
339. In addition, it was important to bring the ‘rumours’ within the purview of the organization itself. It was therefore important to receive some evidence to indicate or reveal and enable the subcommittee to determine if there was a connection between any one of the named people and Equal Education and then between those named people and Isaacs. If there was no such connections, then that would be the end of the matter for the Human Resources Subcommittee and there could be no disciplinary enquiry (external or otherwise).
340. I do not find that Achmat erred in formulating the Terms of Reference to the Human Resources Subcommittee or in attaching, to those Terms of Reference, the full submission made to him by Hasson which set out the details of Hasson’s concerns.
341. The Human Resources Subcommittee was presented with these Terms of Reference to which they applied themselves as required.
The Evidence
342. The only evidence presented to the Human Resources Subcommittee was the “letter” from Hasson and Isaac’s response thereto.
343. Achmat had told this Panel that what was being repeated was no more than “hearsay” and he wished Hasson and the “sources of the rumours” to have provided “evidence”.
344. Of course, this Panel must bear in mind that it was not for Achmat, having prescribed the Terms of Reference for the Subcommittee , to thereafter lay down the procedures and approaches to be made to witnesses or any other person. But, as I have already indicated, the first point could not be the women who had been named without permission. The first point of call had to be to turn the “rumours” into “evidence” and the only persons who could do that would be those persons who were Hasson’s sources
– he had named ‘KR’ and ‘KS’ – and any other person who had provided him with further
‘questions’ about two more women. They did not do so.
Approach by the Subcommittee for any evidence
345. The Human Resources Subcommittee received no evidence other than the rumours. No one came forward to them except Hasson who has the rapporteur of such rumours.
346. In view of this Panel’s own experience we appreciate the difficulties in soliciting evidence regarding sexual misconduct. But, all that the purveyors of the rumours had to do was to produce evidence of connection with Equal Education and thereafter connection with Isaacs. The did not even have to go further to explore sexual misconduct!
The ‘evidence’ – subsequent emails
347. The Panel has been referred to emails sent to the Board in 2011 by at least two persons as a result of emails sent to them by Isaacs himself. The Panel has not examined the emails from Isaacs which apparently provoked or solicited such responses. We do not see these emails as contributing to the results of the 2011 hearing – their dates are subsequent to the 11th June and those findings. In any event the recipients indicate no ill will or maltreatment at the hands of Isaacs hands but also warmth and affection.
348. In any event, the value of these emails to the Board in 2011 would not be tarnished by Isaacs having solicited them. It was never for Isaacs to ‘prove his innocence’ to misuse a frequent phrase. One issue had been raised as hearsay and another four questions had been asked (all of which were hearsay or out of thin air) – whoever was making hearsay comments or innuendo had to show there was any value or substance thereto before Isaacs, in a properly constituted Disciplinary Enquiry, should have needed to respond (if he chose so to do). And what was written to the Board was subsequent to the work of the Human resources Subcommittee.
The Report
349. All Reports can probably be shorter and less repetitive. This one written by myself could certainly be pruned.
350. But, I would comment that the report of the Human Resources Subcommittee could have been a little more expansive. It could have clarified exactly what the three stage process of the Terms of Reference required; that they were not intending to and did not conduct an investigation into sexual harassment but were wanting to receive any evidence of an EE connection and thereafter an Isaacs connection; that if this preliminary stage had resulted in any affirmative response and actual ‘evidence’ from those who created and those who circulated the “rumours” only then could the matter have been taken to a disciplinary stage such as an enquiry into sexual misconduct; that none of the rumour mongers had come forward and no evidence had been supplied; that there was therefore nothing to take further; that there was no need to intrude upon the privacy of and distress persons who had been named and subjected (without their knowledge, agreement or participation) to such “rumours”.
351. Perhaps it might only then have been appropriate to make the findings as set out in the Report itself. After all, all readers would have understood that thus far only rumours existed and no evidence had been presented and that no allegations of sexual harassment had even been presented or considered.
352. The report of the Human Resources Subcommittee did make it clear that this was a preliminary investigation, that it was unusual was there was no complainant and that no evidence had been presented of wrongdoing.
353. Unfortunately but not incorrectly, the report focused only on the following: first, on the lack of evidence to support any claim or suggestion of intimate relationships by Isaacs with an EE intern or that he had used his position of authority to make inappropriate advances to women connected to the organization ; secondly, that there was no evidence to support any rumour that a women associated with or about to be so associated ended such association on the basis of unwelcome advances by Isaacs; finally that insofar as there may have been allegations of intimate relations with women not connected with EE, the view was taken that “Doron’s private life was not its concern”. Accordingly, the Human Resources Subcommittee concluded that there was an absence of evidence of misconduct and there was no basis for any further investigation of this matter.
354. I stress that none of this is incorrect. I appreciate that this was not a full investigation and that rumour mongers had really been asked to put up or shut up. They had certainly not put up – but their tongues and their whispers were never really put to rest and the sources of rumours were still at large. But this is twenty-twenty hindsight. Perhaps the small group whispering should not have been given more information, perhaps they needed to be placated and perhaps it was hoped that a firm and robust approach would enable the organisation to move onwards.
Leadership Issues
355. In his “letter” or submission to Achmat, Hasson had made it clear that his concern was an apparent failure of leadership by Isaacs and the impact which this was having upon Equal Education and that he wanted these concerns resolved:
“As you said, there is no real complainant in this situation. We, Equal Education, are the complainants because questions have been raised about the integrity of our leader.
“Rumours do exist about Doron’s potential abuse of power in regard to young women associated with EE. His reputation is at risk and by extension, EE’s reputation is at risk.
“The complexity of this situation stems from the fact that as the Coordinator of Equal Education Doron makes connections all the time with people wanting to work with EE in various capacities. This correspondence takes place by email. Doron holds the strings in regard to who falls into a personal category, who falls into a professional one and who not ever become associated with EE. It is therefore extremely difficult to make claims about what is personal and what is professional.
“ ….. I would feel that he has acted in a way that leaders should not, and that his actions put EE at risk.
“…it is not my intention to pry into [Isaac’s] private life, but to protect potential damage to the reputation of the organization we have built together.”
356. If Hasson was not an intermediary for named/unnamed or for known/unknown women, he was certainly a complainant on behalf of his organization.
357. It is for this reason, discussed later, that I cannot be as confident as is Achmat as to his view of the ‘optics’ of the situation. He believed that that 99% of the parents and youth involved in EE were not party to this issue which had been raised. At most he thought it may have been an issue to the less than 1% of EE which constituted was colloquially known within some emails as ‘the Habonim circle’. The difficulty I have with this rather sanguine attitude is that those rumours or gossip or questions or concerns may have spread outwards (as they have now apparently done) and extended further than the mere 1% of interested parties who may have originally been involved.
358. But it was not only perceptions and optics which were important when there are “rumours”. It is the organization itself which had been identified as being “at risk” by Hasson.
359. It is my view that Achmat, the Human Resources Subcommittee and the Board should have given more careful regard to those issues raised by Hasson as a complainant in his written submission to Isaacs. It is possible that both Achmat and the Human Resources Subcommittee, in confining themselves so strictly and narrowly to an investigation whether or not the Manual and the Code could even become applicable, each of the Chair, the Human Resources Subcommittee and the Board may have failed to have regard to the full extent and most significant portion of the Hasson submission.
Personal Morality – and whether the Personal is Political?
360. Ensor told the Panel that she drew the boundary between workplace and the outside world. What took place outside EE was not her concern since she was only asked to and required to have regard to misconduct within EE and she was not aware of what happened outside EE. Geffen felt that Hasson did not have the position or authority to make a complaint on behalf of EE. He believed the job of the Human Resources Subcommittee was to see if Isaacs had breached The Policies of EE. His view was that the subcommittee had to “stick to the Policy”. Feinberg felt that there had been “concrete questions” raised for consideration by the subcommittee and these had to be addressed “in terms of the Policy” and that it was not appropriate to examine Isaacs’ relationships outside or beyond the organization of EE. He felt that ‘personal life was just that – personal life’. Adler took the view that Isaacs had not done anything which compromised his professionalism although “he was not a very nice boyfriend”.
361. The submissions made to this Panel by Human Resources Subcommittee have pointed out that such concerns about leadership and the private life of Isaacs was not within their Terms of Reference. They point to their Terms of Reference which specifically state that “the policies of EE were put in place not in order to regiment the private lives of members and staff but rather to provide protection to those who may need it and seek it”.
362. The Human Resources Subcommittee has commented that Hasson raised a reasonable concern on which they were unable to act because there was no concrete allegation or evidence upon which they could act. I note that the Human Resources Subcommittee states that they were “not prepared to make moral pronouncements about people’s private sex lives”.
363. Maybe so. But there is no reason why they could not have been more flexible in their interpretation of those Terms of Reference or that injunction or the absence of concrete evidence or their distaste in even considering private lives. Possibly, they could have been more open-ended in their recommendations to the Board on further action which might have been taken as regards the organization itself.
364. Hasson had, in a most indirect and opaque and unhelpful manner, queried the ethical and moral caliber of a leader within and of Equal Education. No evidence had been provided thereof. But Hasson’s submission had made it clear that this was not merely a matter of private morality. Equal Education was possibly exposed to critique and challenge of it’s work and it’s very identity by reason of what Isaacs himself identified in his own memorandum to the Human Resources Subcommittee113 as “embarrassing” conduct which may be considered by society as “salacious” and is “therefore socially unacceptable and consequently ideal fodder for gossip”. Isaacs had gone further and commented:
“any scandals around me, even those which are entirely personal, have a destabilizing effect on EE because I am so closely associated with it. In this respect only I agree with Joey. In this way I did put EE at risk. This does constitute very poor leadership.”
Importance of leadership within an organization such as Equal Education
365. To this Panel, Hasson explained that he had concerns about the significance of the leadership qualities and reputation of Isaacs whom he much admired and considered his best friend at the time. Years had been spent building up Equal Education as an organization from scratch; the membership was young men and women; the organization was building “young leaders”. He felt that the ‘rumours’ about Isaacs constituted potentially damaging behavior which could put the organization at risk.
366. The Panel has been mindful throughout that this is an organization committed to and working with young people. As Hasson, who was specifically working with youth, pointed out young people meet at events, there are summer camps, leadership meetings are intense and intimate and there are multiple occasions for interactions to become romantic or sexual. We were told (by both Hasson and Isaacs) that information had been brought to EE leaders as to what they had heard and that, where a facilitator was involved and there was a power variation with an Equaliser for instance, there would be a disciplinary process and a hearing and a wrongdoer would be required to leave.
367. It is my view that, in the usual course, individuals are entitled to a place of safety and comfort and privacy from which they emerge to deal with and confront the world. But, leaders are treated differently to mere mortals.
Qualities of Leadership
368. The Chair of the Board , the Human Resources Subcommittee and the Board itself might have heard and thought longer and harder about these issues raised by Hasson in his submission to Achmat. Because these issues were pertinently raised in Hasson’s letter, they may have pondered upon and then examined and worked through the qualities and discipline of leadership required by Equal Education. There may have followed a conversation or seminar or training programme about the impact of the actions and behavior of leaders upon their organsiation. It is possible that this present process would not be currently underway.
369. Some recall Hasson and Isaacs and others recall Hasson, Isaacs and Achmat as co-founders of Equal Education. The remarkable public contribution made by the employees and volunteers of this organization to the South African democracy are known to all who keep an eye on developments in this country. The more low-key work (tutoring at school and post matric level for example) is less well known but equally laudable in its care for and inspiration to scholars and students.
370. The leaders of this organization are known for the work both within Equal Education and in other organisations. They stand as role models for young people and elderly alike; they introduce younger South Africans to the possibilities of democracy in action and remind older South Africans of contributions which can still be made. Many of the Equal Education staff and volunteers have been and are visionary human beings who had and do make a positive difference to many lives.
371. But Equal Education has chosen to tackle the difficulties of South African life and structures and governance. EE has engaged on acrimonious terrain with powerful institutions. In pointing out the mote in the eye of the South African government and various Departments of Education, EE has had to be careful to have no beam in its own eye.
372. This has required careful and diligent compliance with financial record keeping, fair labour procedures, professionalism in preparation of study materials and care in presentation of same. Equal Education works with and for young people – teenagers and youth, scholars and students. That interaction requires scrupulous observation of the proper boundaries and separation of the personal lives of adults working with and for Equal Education and the teenagers and youth whom they serve.
373. Leadership carries many obligations. These are frequently touted in self-help books and professional seminars. Amongst them are the obligations to be honest, upright, accountable and disciplined. Integrity presupposes adherence to a set of moral principles which can be publicly articulated.
374. What the Board and the Human Resources Subcommittee may have failed to fully consider was the complaint by Hasson that personal behavior was so entangled with professional behavior that it was having an impact upon leadership abilities and the organisation– Equal Education.
375. There is no indication that the work of the Human Resources Subcommittee or it’s report led to any attempt by the Board as a whole to question or scrutinize or examine the organizational culture. That culture was known to have included rumours, rumour mongering and divisiveness. It also was rumoured to include include a blurring of the lines between personal and professional, play and work, sex and friendship. It was feared to have entertained exercise of personal and professional power in relationship to present or future participants in EE. Power is expressed not only in the relations of men to women and vice versa but also of those with tertiary education qualifications and who are seen to be leaders as opposed to those who have little schooling and may clean kitchens or lavatories at EE.
376. It might be that these are all issues which could have been more carefully and more pro- actively addressed by the Board as a whole or the Subcommittee in charge of Human Resources.
377. I am of the view that in this area, Achmat might (under less pressure and with less urgency) have thought to direct some attention be given to those leadership concerns raised by Hasson - even though I absolutely accept that the “rumours” had to come first: those “rumours” had to be substantiated by those who created or circulated the “rumours” and be turned into evidence of an Equal Education connection and thereafter an Isaacs connection. Similarly the Human Resources Subcommittee might have chosen to step beyond their Terms of Reference to make such a recommendation that these leadership issues be dealt with. Further, the Board may have given a more general and less personalized consideration to what was reported to them.
378. I am of the view that it might have been advisable for Achmat or the Human Resources Subcommittee or the Board to propose as a further step (either when formulating the Terms of Reference or after the Human Resources Subcommittee reported) to consider some intervention within and for Equal Education dealing with significant organizational modalities : did everyone understand the Manual and Code and the responsibilities it placed upon both complainant and observer?; what caused people to create and spreading rumours about anyone within any organization or this particular rumour?; what impact did this have on leadership (both actual and potential)?; how could leadership skills be identified/encouraged/nurtured and developed amongst all those involved in EE?; what were the responsibilities of leaders and the impact of their personal behavior upon organisations?; what was the ambit or extent or orbit of a leader’s representation of and impact on behalf of her/her organization?. There are many such issues which could have been considered in many fora and in many different ways.
Transparency within the Organisaton
379. Whilst we appreciate that this Human Resources Subcommittee did it’s work within a very short space of time and without the benefit of their Chair, Achmat, (who was in Palestine) and the continuing availability of their only complainant, Hasson ( who was leaving South Africa), the Panel has noted that further steps were not taken within the organization of Equal Education by the Board to ensure that all those who may have been involved in the “rumours” and those who had no knowledge thereof had the opportunity to explore these issues and the impact on the organisation.
380. It would have been advisable to have had an open discussion with all members of the Equal Education community (Equalisers, members, staff, interns, volunteers) about such issues as sexual harassment and inappropriate behavior or other misconduct and perhaps then have taken everyone through internal policies and procedures, ensure that the Disciplinary Code and method of making complaints were known to all, hold workshops and discussions so any misunderstandings or grievances could be aired in open conversation and then, hopefully, resolved.
381. As a general comment (admittedly easily made where this this Panel is not subject to the same urgencies and organizational hazards of rumour mongering and the pending departure of the only informant Hasson) a spirit of organizational justice explored and established in 2011 may have assisted in avoiding this present 2018 organisational debacle. If there had been less urgency, more openness, involvement of more than just the rumour mongering clique, staff meetings, calls to all members of staff for reports and concerns on a confidential basis (not only concerning Isaacs) on all issues of race and class and hierarchy as well as sexual misconduct, slowly arranged hearings with full opportunity for expression of feelings and challenge of problems, examination of what constitutes ‘workplace’ behavior as opposed to that within the ‘orbit’ of the organization, assessment of power dynamics and the care and consideration required in all interpersonal interactions of the organization (gender, race, class) - with perfect hindsight greater attention to the culture of the organization may have been and may yet be helpful.
382. Insofar as paragraph 20.1 of the Terms of Reference of this Enquiry is concerned, where this Panel is required to look at and advise on the organization, we note that Equal Education in 2011 differs greatly from Equal Education in 2018. This Panel has not visited or consulted with or questioned past or current staff or Board members and it may not prove possible so to do. We may find that the Panel does not have the appropriate skills sets in this area. In any event, our comments on the 2011 hearing and the matters which gave rise thereto and the response thereto are hindsight observations and our critique of personalities, events, organizational structure have now changed by the effluxion of time. Any views of this 2018 Panel would require greater knowledge of the organization both in 2011 and 2018 and can be of little practical assistance at this point in time.
Conclusion on Conflicts of interest within the Human Resources Subcommittee
383. None of this hindsight critique is intended to suggest, in any way, that one or more or all of the members of the Human Resources Subcommittee had or were subordinating their duty to Equal Education to their personal acquaintance, friendship, comradeship or professional collegiality with Isaacs. Similarly, it is not suggested that one or more or all of the Board of Equal Education were so doing.
384. The Terms of Reference were not impeccable but were constructed within unusual circumstances. The members of the Human Resources Subcommittee made themselves available at short notice and were confronted with a strange hybrid document which referred to rumours and asked questions but laid no complaint other than one which did not fit within the Disciplinary Code of the organization. No evidence was produced by any persons who knew of or now claims to know of “rumours” or sexual misconduct. The Human Resources Subcommittee could have come to no finding other than it did. The Board (save in respect of the Achmat referral of the Human Resources Subcommittee to the sexting link) did not interfere in any way with the process or the result.
385. As a result, I cannot conclude that there was any acknowledged or unacknowledged conflict of interests which allowed the Human Resources Subcommittee to be placed in the position where they could have elevated their private friendships or acquaintanceships above their duty to Equal Education. There was no conflict because neither duty nor friendship/connection required any person to weigh or balance out the other.
386. That stage was never reached. If the possibility of a disciplinary enquiry or an enquiry into sexual harassment had ever been reached and complaints had been made against Isaacs then the situation may have been different. The Human Resources Subcommittee had already, in their own correspondence, indicated that they envisaged that another disciplinary panel (perhaps from outside the organisation) would have been involved. With this preliminary investigation only, I cannot find any of sufficient reason for recusal from dealing with the first two issues to be dealt with in their terms of reference.
387. I find that none of the members of the 2011 Human Resources Subcommittee or the Board suffered from or succumbed to a conflict or interests or participated in any cover up of sexual harassment or any other form of misconduct.
388. I have considered whether or not the optics of the situation and the perceptions of all within and without Equal Education (especially those party to and spreading the rumours) might have been assisted by the recusal of one or more or all of the Human Resources Subcommittee.
389. Those who view a process may not always be privy to or comprehend the details or complexities of that process. It is easy to enhance and extend rumours by averring that they have not been solved because those entrusted with solutions have been suborned in some way or another. And what could be easier than by suggesting that each of Ensor, Geffen, Adler and Feinberg had connections with Isaacs which would always lead to each of them protecting him against allegations made by women?
390. But to suggest that for safety’s sake and pandering to rumour mongers and would have justified the recusal of any one of Ensor, Feinberg, Geffen or Adler is to go too far. It might have avoided this 2018 Panel of Enquiry if an independent outsider had been brought in – but I have already indicated in the section entitled ‘ the composition and purpose of the Human Resources Subcommittee’ why this might have been more difficult and stressful for the organization at that time.
391. However, notwithstanding those remarks it must be repeated that it is specifically found that not one of the members of the subcommittee subordinated their duty to Equal Education and their obligation to act as unbiased and independent persons to any connection they had or have with Isaacs.
RESIGNATION OF PROFESSOR RASHIDA MANJOO
392. Professor Langa does not disagree with this section of the Report but does not associate himself with the inclusion thereof. Professor Malose Langa wants to stress that it was always his preference that all three members of this Panel should produce a joint report after ventilation of all issues and debate thereon and would have preferred that the three members of the Panel had reached consensus.
Appointments
393. Terms of Reference for this Enquiry were finalized , persons approached and provided with the terms of reference , invitations to serve as Panellists were extended and accepted, then Equal Education announced the appointment of an Enquiry, the Terms and Reference and the persons who had agreed to serve thereon.
394. All three of the Panellists – Judge Satchwell, Professor Langa, Professor Manjoo –had had the opportunity to study the terms of reference before they accepted their appointments. No request was made by any Panellist for the Terms of Reference to be amended or extended or revisited in any way.
395. The Panellists had their first meeting in Johannesburg on 5 July 2018 when they were provided by attorneys CTH with all such documentation as was then to hand. The Panellists discussed many of the issues associated with both the purpose, the subject matter, the content, the processes to be adopted in this Enquiry.
The Joint Work of the Panel
396. Absent receipt of complaints, it was decided amongst the Panellists that there would be value in attending to the task set out in paragraph 12.2 of the Terms of Reference – namely review of the work of the 2011 Human Resources Subcommittee. Practical arrangements for hearings were made, vast numbers of documents were made available to the Panellists, questions for those persons involved (Hasson, Achmat, Ensor, Geffen, Feinberg and Adler) were prepared for and on behalf of myself and notice of my possible questions given to those persons who appeared as witnesses. Hearings were held in Cape Town on 8 and 20 August 114 where the above named persons gave evidence in that they told their story, referred the Panel to documents and were questioned by each member of the Panel – including Professor Manjoo.
397. The following day (21 August 2018) the Panel met to consider, discuss and debate the evidence which we had heard, whether more information needed to be obtained and what, generally, were our preliminary thoughts and views on this portion of the Enquiry. Notes were taken of that which was said by each panelist. Professor Manjoo was asked and agreed (by reason of her special understanding of the issues involved in sexual harassment) to approach each one of the women who had been named by Hasson in his complaint to Achmat. As indicated earlier in the Report she did carry out this task. I undertook to prepare a draft outline of a report dealing with the Terms of Reference as well as the evidence received regarding the review of the work of the 2011 subcommittee and the preliminary views views thereon of all three of the Panellists. That draft outline was sent by myself to the other two Panellists (as well as attorneys CTH) on 27th August 2018. Professor Manjoo gave no indication of any difficulties she experienced in that outline and, in fact, she made no response thereto at all.
398. It took much work in various ways – emails, phone calls, discussions, drafting memoranda by myself, correspondence etc – to finally arrange for receipt of the submissions from persons who might be potential complainants, explore the terms upon which these were submitted, communicate these terms to the persons against whom complaints might be made and work out the way forward. Eventually, everyone was available in October. The Panellists met on the afternoon of Monday 22nd October to discuss the various issues on which we had been exchanging views and the procedure to be followed the next day. On Tuesday 23rd October, we heard argument from the WLC in the absence of any other party. As already pointed out, the WLC representations had not been made available to anyone. Thereafter, on the same day, we heard argument on behalf of all those persons against whom there may have been complaints. In addition, on Wednesday 24th October, in response to the M&G article, the Panel heard evidence from Isaacs and Achmat and every member of the Panel asked questions of both of them.
399. Again, the Panel adjourned and discussed the argument we had heard and reached agreement as regards the admissibility into evidence of the submissions by potential complainants on the terms which they had required. We also discussed the evidence we had heard and considered the way forward. We decided that ‘Jane’ should be given an opportunity to receive the transcript or the recording of the evidence given and decide whether or not she wished to comment on the M&G article, give evidence, challenge that of Isaacs or Achmat. We also invited the WLC to make a further submission on sexual harassment in general and responses thereto in addition to those representations which they had earlier made regarding the admissibility of the secret submissions.
400. We have received the further submissions from the WLC. ‘Jane’ has decided not to participate in this process established by Equal Education in response to the Mail & Guardian article.
The Report as drafted by myself
401. Again, I had volunteered and did prepare a draft Report on the entire process. I was mindful that, although we each individually seemed to have reached more or less the same views and possibly the same result in our work, I could not always hope to adequately represent the exact views or approaches, the nuances or the distinctions of each individual Panel member.
402. Accordingly, when I sent out my draft Report to each member of the Panel on the night of Sunday 28th October, I made it clear that I wrote in the first person so that it would not be thought that I spoke or expressed the views of each of the three member Panel. I made it clear that the other two members of the Panel could, obviously, make changes thereto. If there were issues on which we not in agreement, then I suggested that the other two members of the Panel could write their own portions of or an entire Report. I had no idea of knowing whether nor not the document drafted by myself would be a Report for all three Panellists, or whether I was writing for a majority or myself alone in a dissenting Report.
403. I thus made it clear to both my colleagues that they were free to adopt one of a number of options. A Panelist could write “I agree” in respect of both results and reasoning; or write “I agree” with the result but not with the reasoning and then produce his or her own different Report which might become a minority dissent or a majority Report; or write “I disagree” with both reasoning and result and obviously then produce her or his own Report which also might become a minority dissent or a majority result.
Resignation without a Report
404. On Sunday 11th November, Professor Manjoo wrote to myself and to Professor Langa advising that she was resigning from the Panel of this Enquiry.
405. I thereafter wrote to Professor Manjoo more than once requesting that she express her views, which are careful and considered and deeply held, in a Report (with which Professor Langa might concur) so that all who read will understand the defects in what I have written, see a different perspective towards the issues before us and so that she might offer her approach to a transformative process and attitude towards investigation of and dealing with issues of sexual harassment and misconduct.
406. Professor Langa has taken the view that he would prefer that the three Panellists all contribute to and adhere to one Report. As can be seen, Professor Langa has indicated where he has views on facts or opinion which differ from mine.
407. I am surprised and saddened and somewhat mystified by the approach of Professor Manjoo. She knew the Terms of Reference which set the parameters of our duties and she accepted this appointment. She now complains that these are flawed. She participated in all proceedings and knows all the evidence and has had the same opportunity (as have I and Professor Langa) to reduce her views to writing in a manner that will be accessible to all concerned. Those concerned are, not least, Equal Education (which is the organization from which she accepted this appointment) the complainants whose views she wishes to have explored, the persons against whom complaints are made, the cause of justice which she espouses as requiring a transformative approach and a victim centered approach. I am most surprised that it is even possible to accept appointment as a Panellist, hear evidence and argument and then fail to even attempt to express views on the very issues which one claims to consider so vital and significant for our society and not follow through thereon but to simply to resign appointment.
408. If Professor Manjoo will not produce her views in a Report and take ownership thereof, then it is difficult to know how anyone will ever be able to respond to her considered and scholarly and empathetic and transformative approach. She cannot give lectures thereon, hold seminars, write articles or chapters when she has not finalized the task given her by Equal Education and which she accepted. This could be a great loss.
409. However, in tendering her resignation Professor Manjoo wrote an email to Professor Langa and myself of which the contents are not confidential since she has asked us to have them conveyed to Equal Education. Accordingly, I quote her email in full since it is the only way I know of indicating her approach towards the matters before this Panel:
“……… 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 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 submission to EE in broad terms to enable discussions within the organisation and the wider social justice sector (if they so choose).”
Withdrawal of Resignation and proposed dissenting Report
410. Subsequent to my approaches to Professor Manjoo (and I understand approaches made by Professor Langa), she has indicated that she wishes to withdraw her resignation and will write her own Report but that, due to other commitments, it will not be possible for such Report to be written and made available at the same time as distribution of this Report.
411. I have indicated to Professor Manjoo that both Professor Langa and myself would appreciate seeing her document and that one or both of us may well be in agreement with her approach and comments on the nature of sexual harassment and the manner in which it should be explored and may wish to sign on to such views and enter our written agreement to this Report. She has agreed thereto.
FINDINGS ON ALL ISSUES SET OUT IN THE TERMS OF REFERENCE.
412. On a conspectus of all the evidence received by this Panel, I find:
1. AD TERMS OF REFERENCE 12.1.1: INVESTIGATION OF ALLEGATIONS REGARDING AN INCIDENT IN 2009 WHICH APPEARED IN THE MAIL & GUARDIAN NEWSPAPER OF 18TH MAY 2018:
a. No evidence has been produced to support the existence of any of the allegations regarding an incident in 2009 involving Mr Doron Isaacs which allegation was reported in the Mail & Guardian newspaper of 18th May 2018 and all evidence available to this Panel exonerates Mr Doron Isaacs of any wrongdoing with regard to such allegations.
2. AD TERMS OF REFERENCE 12.1.2: INVESTIGATION OF ANY OTHER SPECIFIC COMPLAINTS OF SEXUAL HARASSMENT OR RELATED MISCONDUCT, INCLUDING IN RESPECT OF OTHERWISE CONSENSUAL RELATIONSHIPS WITHIN THIS PERIOD:
a. No complaints or evidence have been produced to support the existence of any complaints of sexual harassment or related misconduct on the part of Mr Doron Isaacs. In the absence of any such complaint or evidence against him, there is nothing before this Panel of which Mr Isaacs needs to be exonerated.
3. AD TERMS OF REFERENCE 12.1.3: INVESTIGATION WHETHER ISAACS OR ANY OTHER MEMBER, EMPLOYEE OR OFFICE BEARER, INCLUDING ZACKIE ACHMAT, SILENCED OR INTIMIDATED ANY POTENTIAL COMPLAINANTS AGAINST ISAACS:
a. No evidence has been produced to support the existence of any allegation against Mr Achmat that he has silenced or intimidated or attempted to silence or intimidate any potential complainant against Isaacs as was reported in the Mail & Guardian newspaper of 18th May 2018 and all evidence available to this Panel exonerates Mr Achmat of any wrongdoing with regard to such allegations.
b. No evidence has been produced to support the existence of any allegations against Mr Isaacs that he has silenced or intimidated or attempted to silence any potential complainant against himself as was reported in the Mail & Guardian newspaper of 18th May 2018 and all evidence available to this Panel exonerates Mr Isaacs of any wrongdoing with regard to such allegations.
c. There are no other complaints of attempted or completed acts of intimidation or silencing on the part of either Mr Isaacs or Mr Achmat in regard to any potential complainant against Mr Isaacs. Absent any such complaints, there is nothing before this Panel of which Mr Isaacs or Mr Achmat needs to be exonerated.
4. AD TERMS OF REFERENCE 12.2: REVIEW OF THE PROCESS AND FINDINGS OF THE 2011 INVESTIGATION INTO ISAACS’ CONDUCT BY THE THEN BOARD AND THE HUMAN RESOURCES SUBCOMMITTEE. EVALUATION OF THE PROCESS WHICH THE HUMAN RESOURCES SUBCOMMITTEE FOLLOWED AND THE MERITS OF ITS FINDINGS. CONSIDERATION WHETHER OR NOT ANY OF THE MEMBERS OF THE HUMAN RESOURCES SUBCOMMITTEE WAS SUBJECT TO A CONFLICT OF INTERESTS:
a. The process followed by the Human Resources Subcommittee, the Chair of the Board and the Board itself in the 2011 investigation was fair and appropriate in all the circumstances and met the requirements of natural justice and proper procedure.
b. The findings of the Human Resources Subcommittee as endorsed by the then Board was considered, rational and correctly reflected the absence of evidence before them.
c. No member of the Human Resources Subcommittee or the Board allowed any personal knowledge of or connection to or with Mr Isaacs or any other person to compete against or overwhelm their duty to conduct an independent and impartial investigation in his or her capacity as a member of the Human Resources Subcommittee or the Board and thus no person can be found to have subordinated their duty to Equal Education to their personal interests. No conflict of interests was entertained or indulged.
5. AD TERMS OF REFERENCE PARAGRAPH 20.1 – 20.4: RECOMMENDATIONS OF ACTION TO BE TAKEN BY EQUAL EDUCATION IN RESPECT OF IT’S POLICIES, GOVERNANCE SYSTEMS AND PRACTICES IN RELATION TO ANY PERSON OR MATTER CONTAINED WITHIN OR RELEVANT TO THESE TERMS OF REFERENCE:
a. For the reasons set out in detail in this Report, this Panel makes no specific recommendations to Equal Education as an organization on the manner in which it should attempt to ensure a culture in which the dignity of all employees and persons associated with Equal Education receive proper acknowledgment and respect.
413. In terms of Paragraph 19.2 of the Terms of Reference it is directed that this Report be released in full to Equal Education, to Mr Isaacs, Mr Achmat, to Professor Ensor, to Dr Geffen, to Mr Feinberg and Dr Adler and to any person who requests a copy hereof from Equal Education.
DATED AT JOHANNESBURG THIS 27TH DAY OF NOVEMBER 2018
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K. SATCHWELL
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M. LANGA I AGREE
[electronically signed]
Footnotes:
1 Paragraph 10.1 of the Terms of Reference.
2 Paragraph 14 of the Terms of Reference.
3 Paragraph 13 of the Terms of Reference which uses the peremptory language that such information “shall” be shared with Isaacs.
4 Paragraph 16 of the Terms of Reference. which again uses the peremptory language of and direction to the Panel of “shall”.
5 See paragraphs 13, 15, 18 of the Terms of Reference.
6 Specifically, not for the identity of any source of any journalist.
7In a telephone conversation which refusal to so assist was confirmed in an email of 23rd July and has not since been refuted.
8 In writing on 23rd July 2018.
9 There was an overlap of allegations by some of the complainants.
10 This report deals later with the terms and conditions pertaining to privacy on which these submissions were presented.
11 In the presence of both his attorney and advocate.
12 Whose full name has been made known to the Panel.
13 Isaacs provided communication from the guesthouse indicating that payment was made on or about 27th October 2009 but the actual date of the reservation was no longer recorded by the guesthouse. (page 243 and 276 of Isaacs’ bundle).
14 Page 281 of Isaacs bundle.
15 Within some two weeks at most of the events alleged in the M&G.
16 Who were, on the whole, involved in the gmail contact around the project.
17 Page 279 of Isaacs bundle.
18 Page 280 of Isaacs bundle.
19 Page 244 of Isaacs bundle.
20 Page 282 of Isaacs bundle.
21 Page 283 of Isaacs bundle.
22 Page 284 of Isaacs bundle.
23 Isaacs relies little on documentation but where he does, he simply handed in copies of gmails as they were created at the time. He did not call internet experts to substantiate these documents as may be required in a civil trial, but this is not a trial. Geffen was present, gave evidence and supported the existence of certain messages. ‘Jane’ has had the opportunity to dispute the authenticity or completeness of any documents tendered to this Enquiry and chose not to do so.
24 In the presence of both his attorney and advocate.
25 We appreciate that the decision to deal with this aspect of the work of the Panel was taken at short notice but we were attempting to utilize the time of Panel members and legal representatives as best we could.
26 Achmat handed in a number of facebook messages. These were not authenticated by any IT expert but such expertise is not always required even in a civil trial which this is not. In any event, ‘Jane’ has had full access to all evidence and the facebook messages tendered to this Enquiry by Achmat and has chosen not to challenge their authenticity, the completeness of the communications or in any way impugn them. This Enquiry has no basis on which to reject the evidence of Achmat that these are the full record of communications between himself and ‘Jane’ over this period.
27 Richard Abel - ‘Politics by Other Means’.
28 See the many possible meanings found in the Shorter Oxford English Dictionary.
29 Facebook message of 11th November 2009.
30 I have in mind the use of the phrase in the sense written by the sociologist Erving Goffmann in his seminal work. “Presentation of Self in Everyday Life”.
32 Insofar as it was Achmat alone who produced these Facebook messages to the Enquiry, it is certainly not necessary for him to have led them in evidence through a computer expert - this is only an enquiry and not a court of law which, in any case, is always open to ‘best evidence’ which is, in any event, unchallenged by anyone.
33 Interestingly, ‘anonymity’ and ‘confidentiality’ in the sense operating in this newspaper article attracts synonyms such as ‘furtive’ or ‘stealth’ or ‘clandestine’ which are hardly positive attributes in the world of publicizing wrongdoing.
34 Therein defined as “a specific form of harassment … which may include unwelcome physical, verbal or non-verbal conduct” of which examples are given in a detailed (but not exhaustive) schedule.
35 See also the definition of ‘sexual harassment’ in the Code of Good Practice issued in terms of the Labour Relations Act as “unwanted conduct of a sexual nature. The unwanted nature of sexual harassment distinguishes it from behavior that is welcome and mutual.” The Code provides that sexual attention becomes harassment where unwelcome behavior is persisted in, the recipient has made it clear that the behavior is considered offensive and/or the perpetrator should have known that the behavior is regarded as unacceptable.
36 Paragraph 13.
37 Paragraph 13
38 Paragraph 14
39 As required of us by paragraph 13 of the Terms of Reference.
40 Paragraph 14.
41 Paragraph 15.
42 Paragraph 18.
43 Paragraph 13.
44 Paragraph 14.
45 See, for instance, the interview on Radio 702 on 22 May 2018 in which one person named herself and shared her views on the allegations in the M&G as well as on other issues as also the interview on Radio 702 on 23rd May where an extract from the earlier interview was replayed.
46 Letter from K. Satchwell to attorneys Haffegee, Cheadle, Fourie, Ensor, Feinberg, Adler emailed on 20th September 2018 and also forwarded to the WLC.
47 At this stage we did not have all 19 submissions.
48 One person who initially approached attorneys CTH then said that her submission could be shared with Isaacs but subsequently (on 19th October) we were advised that her submission was confidential for purposes of the Enquiry are could only be shared with the Panel members.
49 Thanks to Mr Haffegee, Ms Harvey, Mr Cheadle, Mr de Waal, Mr Louw, Ms Cohen, M rTaylor and Mr Petersen who all participated in this process, prepared heads of argument and engaged in debate and discussion.
50 Paragraph 14.
51 Section 9.
52 Section 12(2).
53 Section 10.
54 Section 34.
55 Section 33.
56 Section 14.
57 Per Botha J A in Turner v Jockey Club 1974 (3) 633 A at p 646.
58See Heatherdale Farms (Pty) Ltd and Others v Deputy Minister of Agriculture and Another 1980 (3) SSA 476 T and Sachs v Minister of Justice 1934 AD 11 .
59 Paragraph 17 of the Terms of Reference.
60 See NUM v Deelkraal Gold Mining Co Ltd (1) (1994) 15 ILJ 1316 IC; NUMSA obo Goliath & Another v Shelco Shelving (2003) 5 BALR 587 CCMA
61 Kok v CCMA et al [2015] ZALC Jhb 4
62 Letter dated 10 October 2018.
63 Mail & Guardian 1 June 2018.
64 In South African law we understand a review concentrates on the method adopted in a particular process. A review usually refers not to the result but to the methods of a trial.
65 Email Ensor to Achmat 5 June, 2011.
66 From Adler on 3rd June to Brad, Dimitri, Yoliswa and Joey.
67 There seems to be residual concern that Isaacs did contact and continue to make email contact with persons who were either the subject matter of the rumours concerning his behavior or the perpetrators of the rumours. Some were not pleased that Isaacs did not follow this management decision. Hasson clarified that Isaacs was not to contact those persons named in his submission (i.e. the women rumoured to be involved) which submission was dated 8th June but he remained unhappy that Isaacs communicated to Daniel Macintosch who was not one of those women.
68 At this meeting on 2nd June 2011.
69Paragraph 8.2.2.
70 Paragraph 8.2.9.
71 Isaacs pointed out to Achmat the rumour emanated from one ‘KR’ and that the woman in question (‘KK’) was never an intern, never worked at the EE office, never had any formal role in EE, that Isaacs did not meet her at EE but through the 2009 UCT LLM Masters class, that he was never alone with her nor saw her socially, finally that there was never physical relationship at any point nor did he make any unwelcome advances.
72 Achmat pointed out that members of such Boards are geographically scattered and not always immediately available. In any event, the Disciplinary Code had previously been followed in other instances.
73 Achmat expressed his reluctance to “examine rumours that involve adult sexual behavior where there is no complainant.”
74 The EE Manual contains no reference to a Human Resources subcommittee but, from all the correspondence, it is clear that such an entity existed prior to these events in June 2011 and that it was known that Ensor, Geffen, Feinberg were external person on that subcommittee and that Adler was an employee/management person ex officio on that subcommittee.
75 Ensor.
76 Set out above.
77 Annexure 17.
78 Annexure 15.
79 Annexure17 of 5 pages.
80Paragraph 7 of the Code.
81 Email Geffen 10 June 2011 not an annexure.
82 Insofar as Isaacs did communicate with other persons about the rumours and about the impending hearing (for instance to Daniel MacKintosh) it is not certain if he was acting contrary to a direct instruction as provided for in the Disciplinary Code or not and by whom it was given. That was not investigated by the 2011 subcommittee nor this 2018 Panel.
83There was a first draft by Geffen (Annexure 21) which focussed on the particular position of five women and whether or not they had an association with EE. The amendments thereto by Ensor are less dogmatic and more nuanced. I have regard only to the final Report of the subcommittee (Annexure 23).
84 Annexure 29.
85 Annexure 41 (a).
86 Annexure 43.
87 Annexure 52.
88 I should point out that, subsequent to the release of the report to Fischer and others, Fischer wrote in a most friendly manner to Ensor with references to family and work. There was, at that stage, no apparent mistrust on the part of Fischer.
89 It seems that (according to Ensor’s report) in at least one phone call, Fischer raised the Strauss Kahn issue where a woman publicly made a complaint; that she stated the work of the Subcommittee to have been a sham and a cover- up; that she objected to the use of the word ‘malicious’ in relation to ‘rumour mongering’ and that she had the names of three women with complaints which she undertook to provide.
90 Annexure 44.
91 Annexure 46.
92 Annexure 47.
93 Annexure 48.
94 Annexure 50.
95 Annexure 52.
96 Annexure 54.
97 The article inserts immediately thereafter “The M & G has viewed this correspondence.”
98 This transcript was made privately from the Radio 702 interview which radio interview is linked on the Radio 702 website.
99 A somewhat opaque legal definition was given by His Lordship Chief Justice Innes in an early judgment (Robinson v Randfontein Estates 1921 AD 168 at 177) that a conflict of interest is to be found “where one man (sic) stands to another in a position of confidence involving a duty to protect the interests of that other, he is not allowed to place himself in a position where his interest conflict with his duty”.
101 Email Adler to Ensor, Geffen of 8 June 2011.
102 Email Ensor to Achmat of 5 June 2011.
103 The contents of and activities described in this email were known, this Panel was told, to more than just this one recipient.
104 Hasson.
105 Ensor.
106 Adler email of 3rd June.
107 Ensor email of 5th June.
108 Isaacs reported to Achmat that there was a “rumour” that he had an affair with an EE intern which he disputed. 109 Hasson wrote to Achmat that there were “rumours about Doron’s potential abuse of power” perhaps within and perhaps outside EE.
110 The Concise Oxford English Dictionary.
111 Email Ensor to Adler, Geffen of 8 June 2011.
112 Adler’s duties as an employee included maintenance and access to all registers of all EE employees and interns etc.
113 Annexure 17.
114 On 13 August 2018 further evidence was heard in Johannesburg and all Panellists have the transcript thereof.
