In a decision with far-reaching implications, the JSC rejected the tribunal’s earlier finding that Mbenenge was not guilty of sexual harassment, instead concluding that his conduct, when properly assessed in context, meets the threshold for impeachment under section 177 of the Constitution.
Image: IOL Graphics / Office of Chief Justice
The Judicial Service Commission (JSC) overturning key findings of its own Tribunal and finding Eastern Cape Judge President Selby Mbenenge guilty of gross misconduct is significant not only in outcome, but in precedent, according to Judges Matter.
"The JSC has never before departed so strongly from a Tribunal’s findings and conclusions," Mbekezeli Benjamin, research and advocacy officer at Judges Matter, said. Benjamin described the case as "novel and groundbreaking" given that it is the first Tribunal process dealing with sexual misconduct allegations against a judge.
Benjamin said the decision triggers the next phase of accountability.
The JSC rejected the Tribunal’s earlier finding that Mbenenge was not guilty of sexual harassment, instead concluding that his conduct, when properly assessed in context, meets the threshold for impeachment under section 177 of the Constitution.
The Tribunal had found that Mbenenge engaged in a "flirtatious" WhatsApp relationship with court secretary Andiswa Mengo, but ruled that the exchanges were not unwelcome and therefore did not constitute sexual harassment. It instead found him guilty of misconduct.
The JSC has now sharply departed from that conclusion, finding that the Tribunal "misdirected" itself by focusing too narrowly on whether the exchanges took place during working hours, instead of interrogating "their nature, content and context" and the power imbalance between the parties.
It also rejected the Tribunal’s approach to sexual harassment, finding that it failed to apply the correct legal test and did not adequately consider the disparity in power between a judge president and a junior staff member.
On the admitted facts, the JSC concluded that Mbenenge’s conduct, including the sexual nature of the communications, his position of authority, and his lack of remorse, was "grossly inappropriate" and incompatible with the standards expected of judicial office. The commission ultimately found him guilty of gross misconduct.
That finding carries consequences.
Benjamin said: "In terms of section 177 of the Constitution, a gross misconduct finding by the JSC and a referral to the Speaker of the National Assembly initiates the impeachment process, which may ultimately result in the removal of the judge from office."
He added that the JSC has confirmed it will refer the matter to Parliament, meaning "the initiation of impeachment".
Once tabled, the matter will be referred to Parliament’s Justice Portfolio Committee, which will consider submissions from Mbenenge, assess the Tribunal report and the JSC’s findings, and make a recommendation. A two-thirds majority in the National Assembly would be required to remove him from office.
The Women’s Legal Centre said the commission is required to independently assess Tribunal findings.
"The JSC is required by law to apply their minds to the report and recommendations… They cannot simply rubber stamp the Tribunal process," the centre said.
"They have not acted outside of the legal framework by applying their minds and finding differently to the Tribunal."
The centre said the decision reinforces established legal principles on sexual harassment, particularly in the workplace.
"Their decision therefore affirms what our law and courts have already found, that sexual harassment is not about flirting or sexual attraction, but it's a form of discrimination that arises because of power," it said.
It added that "sexual harassment is about one person exerting their power over another person in the workplace", and that judges carry heightened responsibility given their authority.
This emphasis on power is central to the JSC’s reasoning, which found the tTribunal failed to properly consider "the significance of the disparity in position" between Mbenenge and the complainant.
The commission also pointed to the broader impact of the conduct, finding that it undermines public confidence in the judiciary and violates core values including dignity, equality and accountability.
Another key issue is whether Mbenenge will be formally suspended while the process unfolds.
Although he is currently on voluntary special leave, Benjamin noted that the JSC still has the power to advise the President to place him on suspension to prevent a return to the bench during impeachment proceedings and any potential legal challenges.
Cape Times