Gillian Schutte offers an analysis of how donor-funded legal NGOs and elite media commentary shaped pressure around the Mbenenge ruling, arguing that overlapping funding ecosystems produced aligned interpretations that sought to override judicial restraint after legal finality.
By Gillian Schutte
In my previous article on the attempt to prevent Selby Mbenenge from returning to work, I argued that what was unfolding was not legal confusion but a system reacting to the collapse of an outcome that had been assumed in advance. Once law had spoken, power did not withdraw. It shifted form. It reappeared through commentary, insinuation, and institutional pressure designed to keep the matter alive after finality had been reached.
Nowhere is this pressure more visible, or more revealing, than in the article published by Sheena Swemmer in Daily Maverick on 1 February 2026.
In that piece, Swemmer, head of Gender Justice at the Centre for Applied Legal Studies, moves to impose a meaning that the Judicial Conduct Tribunal expressly refused to grant. She writes from a position of expectation shaped long before the ruling emerged and treats the outcome as a failure to deliver what the donor-funded liberal legal and elite media system she sits firmly inside had already anticipated. The article responds to that failure. It reads as an attempt to recover an outcome that had been treated as settled in advance and to stabilise it through doctrine at the precise moment it slipped beyond institutional control. Her intervention forms part of a broader scramble by elite liberal journalism and allied legal commentary to force the ruling back into alignment with an outcome that had been assumed before deliberation began.
Swemmer’s posture sharpens when she states that what struck her “was not a particular factual finding made by the tribunal. Instead, it was the way the tribunal framed its task from the outset.” That admission confirms that the evidence did not disappoint her. The refusal to frame the case in advance did. She objects to the tribunal’s insistence that “there is no presumption of guilt” and that drawing conclusions beforehand “would make the outcome predetermined,” because that insistence blocks the delivery of an outcome already expected. Her objection arises from a legal–media ecosystem accustomed to presumption functioning as obligation and to rulings confirming what has already been settled elsewhere.
To this end, the article installs a mechanism designed to override refusal. Swemmer imports a burden-shift from discrimination litigation and applies it to a judicial conduct inquiry, instructing the decision-maker to treat uncertainty as disqualifying once a minimal threshold appears. Neutrality itself is recast as an obstacle rather than a constitutional discipline. Her decisive instruction arrives when she states that “provided that the complainant provides evidence that suggests, on its face, that sexual harassment may have occurred, then the burden shifts to the respondent,” and that “where the evidence does not clearly support that conclusion, the law requires the decision-maker to find that the respondent has not met this burden and sexual misconduct most likely occurred.” This formulation converts ambiguity into liability and strips adjudicative discretion from the tribunal.
Judicial office carries constitutional weight distinct from employment relations, and discipline exists to regulate conduct while protecting independence from reputational governance exercised outside the tribunal. Swemmer rejects that architecture and substitutes certainty for discipline, collapsing separation of powers into a moral command that favours outcome over process. She does so explicitly when she declares that the tribunal’s approach “does not align with South African equality and sexual violence law,” treating restraint itself as constitutional failure.
What many have missed is that this case acquired strategic value long before deliberation began. Mbenenge stood as a Judge President whose prior conduct disrupted power, and disruption at that level attracts attention. His ruling against Shell on the Wild Coast blocked seismic exploration aligned with global capital. His insistence on judicial independence within a contested province unsettled inherited legal culture. His role in renaming a legal building to honour anti-apartheid legal struggle challenged institutional memory. An inconvenient Judge President carries high symbolic value, and allegations attached to such office invite use as a proving ground for liberal doctrine.
Swemmer’s article operates squarely within this context. It functions to shield the case from scrutiny that would otherwise raise questions about orchestration, including the possibility of post-hoc weaponisation of prior flirtation, a technique widely analysed in literature on institutional power and reputational governance to neutralise inconvenient men of institutional standing. Her intervention works to close off that line of inquiry. In its place, she advances the appearance of a case study designed to ratify workplace sexual abuse law at the apex of the judiciary by insisting on an equality-law lens that begins from presumed power imbalance, shifts the evidentiary burden at a minimal threshold, and treats neutrality as defect.
The tribunal’s refusal to adopt this lens threatened more than expectation. It disrupted a test meant to consolidate authority and precedent. Her response presses doctrine harder because that consolidation failed. She makes this explicit when she writes that “had that lens been applied, the evidence may have been read differently, and doubt may not have carried the same weight.” Doubt itself becomes the error to be corrected.
Her reasoning depends on compressing sexualised interaction into a single juridical category. She writes that the allegations “fall squarely within the legal concept of sexual harassment” and elevates that claim into constitutional harm. She denies the tribunal any room to treat flirtation, misreading, erotic play, or ambiguity as matters requiring rigorous evidentiary assessment. When the record resists compression, she escalates doctrine and recasts restraint as failure.
What she avoids entirely is the quality of the evidence placed before the tribunal. The article never engages inconsistencies, gaps, or the manner in which the complainant’s legal team assembled and sequenced material, including the period after flirtation had allegedly ceased during which interaction continued in altered form. Engagement with that terrain would fracture the certainty required to sustain the case-study purpose, so the terrain disappears.
The handling of Andiswa Mengo exposes the deeper deformation. Swemmer grounds her analysis in categorical identity when she writes that “the complainant falls within a category of persons historically subjected to harm, a black woman,” and proceeds as though that classification alone resolves the nature of the interaction. This requires the erasure of Mengo’s professional capacity. She works as a legal secretary with years of experience in judicial and legal environments. She understands process, hierarchy, documentation, and consequence. She stands in her forties, not in childhood. The ecosystem suppresses that competence and recasts her as helpless and childlike, because the desired outcome depends on infantilisation. A capable Black woman exercising judgment fractures the script on which the argument rests.
At this point a necrophilic arrangement emerges. The system feeds on a frozen image of injury and requires the complainant to remain suspended within that image for authority to circulate. The living subject disappears. The usable victim remains. Law suffers, because agency gives way to spectacle and dignity yields to utility. Andiswa Mengo carried high value while the victimisation of Selby Mbenenge promised institutional reward. That value depended on securing a guilty outcome capable of disciplining an inconvenient Judge President. With that bid now failing, her currency collapses. The system that elevated her will withdraw and leave her to absorb the fallout alone. Instrumentalisation operates in this way. It consumes and discards.
Donor Funding, Elite Media, and the Management of Outcomes
Donor funding does not operate as a neutral background condition. It shapes institutional incentives, defines acceptable frames, and rewards particular legal interpretations while marginalising others. When multiple organisations draw sustenance from overlapping pools of capital, they do not require explicit coordination to produce alignment. Shared funding environments generate shared assumptions, shared language, and shared expectations about outcomes.
In this context, legal NGOs, academic centres, and elite media platforms function less as independent actors than as interlocking components of a single interpretive economy. Litigation, commentary, and public framing begin to move in parallel, reinforcing one another and narrowing the range of permissible conclusions. Once an outcome has been anticipated and invested in, its collapse does not end the process. Pressure shifts from adjudication to interpretation.
This does not require conspiracy. It operates structurally. Funding sustains careers, institutions, platforms, and authority. When a judicial outcome disrupts the narrative or precedent a donor-aligned ecosystem has prepared for, resistance emerges through commentary, doctrinal insistence, and reputational management rather than through law itself.
It is within this terrain that the response to the Mbenenge ruling must be understood. The insistence on reframing, the rejection of neutrality, and the escalation of doctrine in the face of evidentiary restraint are not anomalies. They are symptoms of a system under strain, attempting to reassert coherence after legal finality has intervened.
The Centre for Applied Legal Studies publicly lists major Western funders, including the Ford Foundation, Open Society Foundation for South Africa, Bertha Foundation, Wellspring Philanthropic Fund, Wallace Global Fund, ELMA South Africa Foundation, and the Rosa Luxemburg Stiftung. Lawyers Against Abuse operates within the same donor-funded legal economy, frequently appearing alongside CALS in litigation ecosystems, public advocacy, and elite media commentary. These organisations do not operate in isolation. They share funding streams, institutional legitimacy, and access to media amplification.
Journalists, editors, NGOs, and authorised spokespeople draw legitimacy, access, and survival from this system. When a tribunal interrupts alignment, reaction follows because interruption threatens funding, authority, and institutional relevance.
The arrangement mirrors the conduct of ANC ministers who protect mining shares while communities lose land, water, and health. Material interest governs behaviour. Principle follows. The same logic governed the NGO debauchery that followed Marikana. Widows became currency. Grief became infrastructure. Donor conferences, research grants, advocacy careers, and media profiles assembled themselves around sustained injury rather than resolution. Justice would have ended the arrangement. Ongoing suffering kept it solvent.
Law, NGOism, and elite media operate together as a panoptic web of donor interests that has infiltrated professional practice, public discourse, and institutional life long before it disciplines judges and advocates. Doctrine supplies authority. NGOs supply legitimacy. Media supplies repetition. The combined effect governs outcomes without decree and conditions compliance until it feels natural. African judges who assert independence register as danger within this order, because sovereignty interrupts discipline.
This operation warrants rejection in full. Virtue signalling that disguises enforcement deserves no accommodation. Doctrine mobilised to satisfy donor agendas corrodes law rather than serving it. A legal culture that disciplines African judges for refusing colonial obedience cannot claim integrity.
While the ruling held its ground, the response revealed the machinery.
All institutions involved must now stand down. When law has concluded, pressure must yield. If the judiciary, legal NGOs, academic centres, and elite media continue to treat outcomes as negotiable after finality, justice itself is weakened. The danger is not this case alone, but the normalisation of manipulation. That is how trust erodes, and how future generations learn to accept distortion as order.
Photo:Kai Singiswa
Gillian Schutte is a South African writer, filmmaker and critical race scholar whose work interrogates media power, donor influence, and post-apartheid institutional politics. Writing from a left, anti-hegemonic perspective, she focuses on the intersections of law, race, and global capital, and is the founder of Media for Justice.
