Being charged with a sexual offence is not an obstacle to staying in office: The Inkatha Freedom Party (IFP) and Mncedisi Maphisha - Deputy Mayor, AbaQulusi, KwaZulu-Natal)

On 12 October 2017 Mncedisi Maphisa, a representative of the IFP and the Deputy Mayor of AbaQulusi, gave a woman a lift from Ulundi to Vryheid. He stopped the car along the way to demand sex from her and when she refused, proceeded both to masturbate in front of her and coerce her into touching his penis. He was subsequently charged with sexual assault, indecent exposure of genitals and compelling a person to witness masturbation. Maphisa is currently out on bail of R3 000 and will appear again in the Vryheid Magistrate’s court on 17 January 2018.

Maphisa is still continuing in his position as the Deputy Mayor and media reports indicate that the IFP will not act on the matter until after the criminal trial. IFP spokesperson Blessed Gwala is on record stating that the party will rely on the legal system to deal with the matter and will allow the law to take its course before embarking on any action. While the IFP Women’s Brigade has noted their ‘grave concern’ over the serious allegations, reports indicate that they too are under the impression that the party is only obliged to act once criminal justice processes have been concluded.
This is a common and mistaken understanding of the law. Criminal trials and disciplinary actions are separate processes, with different purposes and levels of proof needed. This is why the withdrawal of charges, or an acquittal in a criminal court, does not always mean an incident did not happen. It means that the state could not prove beyond a reasonable doubt that it happened.

The purpose of an internal disciplinary process, in most cases, is to maintain behavioural standards and create a safe working environment – as employers are required to do by law. The onus of proof is lower in internal disciplinary processes than it is in criminal trials; cases must be proved on a balance of probabilities, rather than beyond reasonable doubt. Internal disciplinary processes can and should run at the same time as a criminal trial. They should always be run when the allegations constitute misconduct.

The IFP Constitution also clearly requires that any member charged with a criminal act must have their privileges of membership automatically suspended before the matter is dealt with by the National Disciplinary Committee. However, there is a gap in the Constitution’s section on Disciplinary Procedure Rules. Sexual misconduct is not included among the 20 offences against the party – although public drunkenness is. In terms of the way the section on disciplinary rules is currently drafted, the only offence that an harasser can be charged with is “bringing the party into disrepute, ridicule and/or contempt.”

The Local Government and Municipal Systems Act, 32 of 2000, includes a Code of Conduct for municipal councillors (and deputy mayors). Although sexual violence is not specifically listed as an offence, the Code can be used to institute internal disciplinary processes against a councillor accused of sexual misconduct. This is through the clause that requires councillors to act in the best interests of the municipality and in such a way that the credibility and integrity of the municipality are not compromised.

Avenues do exist then, for addressing the Deputy Mayor’s conduct. What is missing is the political will to use them.