- Judges Matter is pushing Parliament to fast-track the Mbenenge matter after the JSC’s damning gross misconduct finding.
- The case centres on a complaint by court secretary Andiswa Mengo, who alleged sustained inappropriate conduct and an abuse of power.
- The organisation says Parliament must now decide whether Mbenenge is fit to remain on the bench.
Judges Matter is calling on South Africa’s Parliament to urgently prioritise proceedings against Judge President Selby Mbenenge, after the Judicial Service Commission (JSC) found him guilty of gross misconduct in a ruling that carries significant constitutional weight.
The matter has now entered a critical constitutional phase. The ball is firmly in the National Assembly’s court, and it must decide whether Mbenenge should remain on the bench.
The case has its roots in a complaint lodged by Andiswa Mengo, a secretary at the Makhanda High Court, who accused Mbenenge of sustained inappropriate conduct between June 2021 and November 2022. Her complaint put one of South Africa’s most senior judges under intense scrutiny and set in motion formal disciplinary proceedings.
From tribunal finding to JSC reversal
The matter was first heard by a Judicial Conduct Tribunal, which examined a series of WhatsApp exchanges between Mbenenge and Mengo. The Tribunal described the interaction as a “flirtatious relationship” and concluded that, while the conduct breached the Code of Judicial Conduct, it fell short of gross misconduct or sexual harassment. It found the exchanges were not unwelcome and were broadly consensual, ultimately returning a finding of misconduct only.
That conclusion did not stand. The JSC rejected the Tribunal’s reasoning outright and substituted its own finding, concluding that Mbenenge’s conduct met the constitutional threshold for gross misconduct. It found that “the conduct of Judge President Mbenenge constitutes gross misconduct in terms of Section 177(1)(a) of the Constitution.”
In doing so, the JSC criticised the Tribunal for focusing too narrowly on consent and timing, rather than properly weighing the nature of the conduct and the context in which it occurred. The JSC found that “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 central to the complaint
At the heart of the JSC’s reasoning was the stark power imbalance between Mbenenge and Mengo. The Tribunal had treated the interaction as broadly equal, an assessment the JSC flatly rejected, stressing that Mbenenge’s position as Judge President was a defining factor.
The JSC found that “the Tribunal failed to properly consider the impact of the relationship of power between JP Mbenenge and the complainant.” It further held that “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 overturned the Tribunal’s conclusion that no sexual harassment had occurred, finding that the wrong standard had been applied and that too little weight had been given to Mengo’s position and the broader context of the interactions.
The constitutional process now moves to Parliament
With the gross misconduct finding in place, the JSC has set the constitutional removal process in motion. It confirmed it will submit its findings, along with reasons and the Tribunal report, to the Speaker of the National Assembly in terms of the Judicial Service Commission Act.
The JSC stated that “the Commission will accordingly submit to the Speaker of the National Assembly its findings, together with reasons and a copy of the report.” It has also invited public submissions on whether it should advise the President to suspend Mbenenge while the parliamentary process runs its course.
Under Section 177 of the Constitution, Parliament must now decide whether to pass a resolution calling for Mbenenge’s removal. If backed by a two-thirds majority, the President would be constitutionally obliged to remove him from office.
Judges Matter calls for urgency and accountability
Against this backdrop, Judges Matter has urged Parliament to act without delay, saying the National Assembly must handle the process efficiently and in a way that reflects the gravity of the JSC’s findings.
The organisation stressed that the constitutional framework depends on timely legislative action once such findings are made, and that any delay risks eroding public confidence in the judiciary and hollowing out the very accountability mechanisms designed to protect it.
Judges Matter also noted that other judicial conduct matters remain before Parliament, including those involving Judge Nana Makhubele and Judge Mushtak Parker.
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