JSC FINDS JUDGE PRESIDENT MBENENGE GUILTY OF GROSS MISCONDUCT OVER ‘SEXUAL RELATIONSHIP’ WITH JUNIOR

Eastern Cape Judge President Selby Mbenenge guilty of gross misconduct for pursuing a sexual relationship with complainant Andiswa Mengo.

Judicial watchdog rejects Tribunal’s ‘flirtatious workplace’ finding, triggers impeachment process; Parliament must now decide Mbenenge’s fate  

By Mpho Dube, Editor-in-Chief

The Azanian | Truth. Fearless. Unfiltered.  

AZANIAFROCOMEDIA – The Catalyst of Impact

Cape Town— The Judicial Service Commission has found Eastern Cape Judge President Selby Mbenenge guilty of gross misconduct for pursuing a sexual relationship with complainant Andiswa Mengo despite a “clear power imbalance”, overturning a Tribunal finding of lesser misconduct.

The finding, announced today, triggers the impeachment process under section 177(1)(a) of the Constitution and moves Mbenenge’s future to Parliament. If two-thirds of the National Assembly votes for removal, President Cyril Ramaphosa will be required to dismiss him from office.

Judges Matter, the UCT-based judiciary watchdog, welcomed the decision. “The conduct concerned is serious and constitutes an affront to the propriety of judicial office and the values underpinning the Constitution,” the JSC stated in its report, quoted by Judges Matter.

The JSC confirmed the Tribunal correctly considered whether Mbenenge breached section 5.1 of the Code of Judicial Conduct, which requires judges to “act honourably and in a manner befitting judicial office.” But it departed sharply from the Tribunal’s conclusion.

By calling the matter “a flirtatious workplace relationship,” the Tribunal understated the seriousness, the JSC said. It failed to consider the “nature, content, and context” of the conduct, that it was initiated by Mbenenge, and that it was “sustained over an extended period.”

The JSC found the communication “grossly inappropriate” for a Judge President, especially toward someone in Mengo’s position, and “incompatible with the standard of honourable behaviour and propriety required of judicial office.”

Crucially, the JSC challenged the Tribunal’s finding that there was no sexual harassment. The Tribunal relied only on an objective standard, whereas the inquiry requires a balanced approach that considers “both objectivity and subjectivity,” including Mengo’s position and the Judge President’s conduct.

The Tribunal also erred by treating Mbenenge’s advances as “cumulatively welcome” instead of assessing each incident. A proper assessment would have shown “certain incidents constituted unwelcome conduct of a sexual nature,” the JSC found. It gave “insufficient weight to the disparity in position” between the Judge President and Mengo.

The JSC said Mbenenge’s testimony showed he “did not appreciate the responsibilities associated with his position, the power imbalance it created,” and that he “showed remorse for his conduct.”

“The conduct… undermines core values of the Judiciary including integrity, accountability, equality, respect and dignity, and it impacts both the workplace and public confidence in the judiciary,” the Commission stated.

The JSC will submit its findings and the report to the Speaker of the National Assembly under section 20(4) of the JSC Act. Parties have been invited to make submissions on whether the JSC should advise the President to suspend Mbenenge pending the parliamentary process.

Judges Matter called on the National Assembly to “treat this matter as a priority and to process the referral expeditiously,” noting that matters involving Judge Makhubele and Judge Parker are also before Parliament.

“The judiciary plays a critical role in combatting gender-based violence in South Africa. It must therefore ensure that its own house is in order,” Judges Matter said. “This finding demonstrates that the JSC takes misconduct of this nature seriously.”

Mbenenge has not been criminally charged. The JSC process is disciplinary, not criminal.