Tribunal clears way for E Cape judge president to return to bench

EASTERN Cape Judge President Selby Mbenenge was expected to return to work on Monday after being cleared of sexual harassment allegations.

A Judicial Tribunal found no evidence of gross misconduct, gross incompetence, or gross incapacity, but it did determine that Judge Mbenenge was guilty of misconduct. The complaint, initially lodged by Andiswa Mengo with the Office of the Chief Justice (OCJ) and later reviewed by the Judicial Complaint Committee (JCC), alleged sexual harassment by Judge Mbenenge.

Mengo's complaint was largely based on numerous WhatsApp messages exchanged between the parties. She alleged these messages, described as "jocular, flirtatious and even salacious," were unwelcome.

Judge Mbenenge, while admitting to sending WhatsApp messages, disputed sending or receiving certain disputed messages and pictures. He contended that an objective reading of the messages would show a consensual flirtatious engagement.

The Women’s Legal Centre, which represented Mengo at the hearing, said in a statement that Mengo requires time to process both the outcome and the “deeply disappointing” language used in parts of the report released on Saturday.

In its report, the Tribunal, headed by retired Judge President Bernard Ngoepe, in referring to specific parts of her evidence, amongst others, found that “she clearly lied, which inevitably severely compromised her credibility".

The Women’s Legal Centre, meanwhile, said it is waiting for Mengo's instructions before “taking further steps".

It pointed out that she retains the right to consider further legal recourse, including the possibility of taking the Tribunal’s findings on review. “These options are actively under consideration,” it said.

The Centre said the report illustrates that women who speak out about sexual harassment continue to face prejudice, stigma, and intense scrutiny.

“The language used, the exceptions placed on survivors, and the framing of credibility all reflect the systemic barriers women encounter when seeking accountability, particularly where power imbalances are at play,” it said.

The Centre said it was important to note that the Tribunal found the Judge President guilty of misconduct for inappropriate conduct in the workplace. It said the finding affirms that the conduct complained of was unacceptable and improper and that Mengo’s complaint was not without merit.

While the Tribunal did not find that the misconduct rose to the level of gross misconduct, the process is not concluded. The matter now proceeds to the Judicial Service Commission (JSC), which is mandated to consider the Tribunal’s report and make the final determination. The Centre said as there remains scope for further submissions before the JSC, it will definitely make use of this opportunity.

Coordinator of Judges Matter Alison Tilley, meanwhile, explained that there are sanctions, which are called remedial steps in law, to follow the finding against Judge Mbenenge. There can be any one or a combination of remedial steps, which includes an apology by the judge president, a reprimand, a written warning, or compensation ordered.

Cape Times