- The Judicial Service Commission found that Judge President Selby Mbenenge committed gross misconduct.
- The Commission rejected the tribunal’s finding that the conduct was not gross misconduct.
- The matter will now be referred to Parliament for a decision on removal from office.
The Judicial Service Commission (JSC) has overturned a tribunal’s finding and declared Eastern Cape Judge President Selby Mbenenge guilty of gross misconduct, referring the matter to Parliament and placing the future of one of South Africa’s most senior judges in serious jeopardy.
The ruling follows a complaint by Andiswa Mengo, a secretary at the Makhanda High Court, who alleged that Judge Mbenenge subjected her to sustained inappropriate conduct, a charge serious enough to place the future of a sitting judge president squarely before Parliament.
Background to the complaint
The complaint centres on interactions between Judge Mbenenge and Mengo that took place between approximately June 2021 and November 2022. According to the Judicial Conduct Tribunal, these interactions included a series of WhatsApp messages that it described as forming a “flirtatious relationship.”
The Tribunal concluded that while the conduct breached the Code of Judicial Conduct, it did not rise to the level of gross misconduct or sexual harassment. In its view, the exchanges were not unwelcome and were broadly consensual, a framing that would prove deeply controversial. It found Mbenenge guilty only of the lesser charge of misconduct.
The JSC was unconvinced by that reasoning and rejected the tribunal’s conclusions in their entirety.
JSC rejects tribunal reasoning
After considering the Tribunal’s report and written submissions from both parties, the JSC rejected the finding outright, concluding that the conduct was not merely a lapse in judgment but gross misconduct under the Constitution.
The JSC found, “The conduct of Judge President Mbenenge constitutes gross misconduct in terms of Section 177(1)(a) of the Constitution.”
In its reasoning, the JSC criticised the Tribunal for narrowing its focus too tightly on whether the relationship was consensual and whether the exchanges took place during working hours, missing in the Commission’s view the bigger picture entirely. What mattered, the JSC said, was the nature and content of the communications and, crucially, the stark power imbalance between the parties.
The JSC found, “The Tribunal understated the significance of the admitted conduct and failed to properly assess the extent to which Section 5.1 was contravened.”
Power imbalance and judicial standards
Running through the JSC’s entire finding was a concern that the Tribunal had fundamentally misread the dynamics of the situation, treating as broadly equal an interaction between a judge president and a court secretary when the authority vested in Judge Mbenenge’s position made any such equivalence untenable.
The JSC found, “The Tribunal failed to properly consider the impact of the relationship of power between JP Mbenenge and the complainant.”
The JSC further held, “Such conduct is grossly inappropriate for a person holding the position of Judge, especially in relation to a person in the position of the complainant.”
The JSC also rejected the Tribunal’s conclusion that there was no sexual harassment, finding that the wrong standard had been applied and that insufficient weight had been given to Mengo’s position and the broader context in which the interactions occurred.
Next steps and possible removal
With its findings made, the JSC has set the constitutional machinery in motion, confirming that it will submit its decision to the Speaker of the National Assembly, together with its reasons and the Tribunal report, as required under the Judicial Service Commission Act.
The JSC stated, “The Commission will accordingly submit to the Speaker of the National Assembly its findings, together with reasons and a copy of the report.”
The JSC has also invited both parties to make submissions on whether it should advise the President to suspend Judge Mbenenge pending the outcome of the parliamentary process, a step that could see him removed from his duties before Parliament has even voted.
Under Section 177 of the Constitution, a finding of gross misconduct by the JSC empowers Parliament to vote on whether a judge should be removed from office.
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