- Judge President Mbenenge has filed a High Court application to review and overturn the findings made against him by the Judicial Conduct Tribunal and the Judicial Service Commission.
- This application disputes findings related to sexual harassment, misconduct, and gross misconduct based on a complaint made by Andiswa Mengo.
- Judge President Mbenenge seeks temporary relief to stop any further actions stemming from these decisions while the review application is pending.
Eastern Cape Judge President Selby Mfanelo Mbenenge has approached the High Court in Pretoria to overturn findings made by the Judicial Conduct Tribunal and the Judicial Service Commission regarding a sexual harassment complaint filed by Andiswa Mengo.
ALSO READ: JSC overrules tribunal and finds Judge President Mbenenge guilty of gross misconduct
Court documents filed indicate that Judge President Mbenenge is looking for both temporary and final relief against the Judicial Service Commission, the Judicial Conduct Tribunal, the Speaker of the National Assembly, the National Assembly, the President of the Republic of South Africa, and Mengo.
This application follows the decision of the Judicial Service Commission, which found Judge President Mbenenge guilty of sexual harassment and gross misconduct.
Challenge to findings
In an 85-page founding affidavit, Judge President Mbenenge argues that the decisions of both the Tribunal and the Judicial Service Commission are unlawful and should be reviewed and overturned.
He challenges the Tribunal’s conclusion that he was guilty of misconduct under Article 5.1 of the Code of Judicial Conduct.
Judge President Mbenenge states, “The JCT’s finding of misconduct under Article 5.1 of the Code was made in violation of the audi alteram partem principle, was beyond its terms of reference, was arbitrary and procedurally unfair, and was not rationally connected to the information and evidence before it.”
According to the affidavit, he asserts that the Judicial Service Commission’s later finding of gross misconduct relied on that flawed finding.
Judge President Mbenenge explains, “The JSC’s finding of gross misconduct based on Section 177(1)(a) of the Constitution depended on the JCT’s incorrect Article 5.1 finding, strayed significantly from the JCT’s factual conclusions without proper justification, was made without notifying me of the case I had to meet, misrepresented the JCT’s reasoning on power relations, the ‘ought to have known’ standard, the cumulative versus individual assessment of exchanges, and the proper sexual harassment test; and was substantively irrational, unreasonable, unconstitutional, and unlawful.”
Bid to halt further action
As part of the proceedings, Judge President Mbenenge seeks temporary relief until the review application is resolved.
The notice of motion requests the court to stop the Judicial Service Commission from taking further actions based on its findings and to prevent the President from acting according to Sections 177(2) and 177(3) of the Constitution until the review is fully determined.
Judge President Mbenenge states he is seeking “The review and setting aside of the decisions of the JSC and the JCT identified herein, along with appropriate additional relief and costs against any respondent that opposes the application.”
He also reserves the right to add to his founding affidavit and modify his notice of motion after receiving the complete record of proceedings.
Relief sought
Judge President Mbenenge asks the court to review and set aside the misconduct finding made by the Judicial Conduct Tribunal and the findings of sexual harassment and gross misconduct made by the Judicial Service Commission.
He further requests orders to stop any actions resulting from those findings until the review application is resolved.
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