The Judicial Service Commission (JSC) has found Eastern Cape Judge President Selby Mbenenge guilty of gross misconduct, overturning a previous tribunal finding that had labelled his behavior as “simple” misconduct.
The decision, announced in a media statement on Thursday, places Mbenenge at risk of impeachment under Section 177 of the Constitution.
Overturning the tribunal’s findings
The matter stems from a 2022 complaint by Andiswa Mengo, a secretary at the Eastern Cape High Court in Makhanda, who accused Mbenenge of sexual harassment.
While the Judicial Conduct Tribunal (JCT) initially cleared Mbenenge of sexual harassment and “gross” misconduct, it did find him guilty of “misconduct simpliciter”.
The JCT had characterised the exchange of WhatsApp messages between the two as a “consensual, flirtatious relationship” that occurred during work hours.
However, the JSC has rejected that characterisation, arguing the JCT “understated the significance” of Mbenenge’s actions.
Power imbalance and “grossly inappropriate” conduct
In its deliberations, the JSC highlighted several key failures in the tribunal’s initial report.
The JSC found that the JCT failed to consider the massive “imbalance of power” between a Judge President and a junior staff member.
The commission disagreed with the finding that no sexual harassment occurred. It ruled that the tribunal focused too much on whether the secretary “welcomed” the advances rather than whether Mbenenge, as a high-ranking official, should have known his conduct was unacceptable.
The JSC noted that Mbenenge showed no remorse for his actions and failed to appreciate the responsibilities of his office.
“The conduct concerned is serious and constitutes an affront to the propriety of judicial office and the values underpinning the constitution,” the JSC said.
Impact on the Judiciary
The commission emphasised that Mbenenge’s pursuit of a sexual relationship with a subordinate undermined core judicial values, including integrity, accountability and dignity.
By upgrading the finding to gross misconduct, the JSC has signaled that the Judge President’s behaviour was not merely a private indiscretion but a fundamental breach of the standards required of a judge.
Recommendations
While the JSC does not have the power to fire a judge directly, its decision serves as a formal recommendation to the National Assembly. The commission’s finding implies that Mbenenge is no longer fit to hold office.
The JSC recommended a total departure from the tribunal’s view that the relationship was consensual. It decided that because of the massive power disparity, the “welcome” nature of the messages was legally irrelevant to the standard of conduct.
