Judicial Service Commission Delivers Bombshell Ruling on Eastern Cape Judge President

The Judicial Service Commission (JSC) has made headlines across South Africa with its decision to overturn a Judicial Conduct Tribunal's earlier verdict, declaring Eastern Cape High Court Judge President Selby Mbenenge guilty of gross misconduct. This finding, announced on April 16, 2026, stems from a complaint of sexual harassment lodged by former judges' secretary Andiswa Mengo and marks a pivotal moment for accountability within the judiciary.

Mbenenge, a seasoned legal figure appointed Judge President in 2017, now faces the prospect of impeachment proceedings in Parliament. The JSC's determination elevates what the tribunal labeled as simple misconduct to gross misconduct under Section 177(1)(a) of the Constitution, highlighting the gravity of his actions in pursuing a flirtatious relationship with a junior subordinate.

This development has sparked widespread debate on power dynamics in professional settings, particularly in the revered institution of the judiciary, where public trust hinges on impeccable ethical standards.

Background on Judge President Selby Mbenenge

Selby Mfanelo Mbenenge, born in 1961 in Butterworth, Eastern Cape, boasts a distinguished career spanning decades. He earned his B Juris and LLB from the University of Transkei (now Walter Sisulu University) and began as a prosecutor and law lecturer before joining the Bar. Admitted as an advocate in 1992 and senior counsel in 2005, Mbenenge ascended to the bench in 2015 and became Judge President of the Eastern Cape Division in November 2017.

Under his leadership, the division underwent significant transformation, unifying seats across Bhisho, Mthatha, and Makhanda, and attracting top judicial talent. As the second most senior Judge President and sixth most senior judge nationally, Mbenenge was seen as a pillar of the Eastern Cape judiciary until the complaint surfaced.

The Complaint: Allegations from Andiswa Mengo

In January 2023, Andiswa Mengo, a judges' secretary at the Eastern Cape High Court in Makhanda, filed a formal complaint alleging sexual harassment by Mbenenge. The interactions, spanning June 2021 to November 2022, involved WhatsApp exchanges and in-person encounters at the workplace. Mengo described the advances as unwelcome, attributing her responses to the immense power imbalance as her superior and a respected figure.

The common-cause facts acknowledged flirtatious communications initiated by Mbenenge, including expressions of intent for a sexual relationship, accompanied by sexually suggestive emojis. While some exchanges occurred during working hours, they extended beyond, blurring professional boundaries.

The Judicial Conduct Tribunal Process

The complaint progressed through the statutory channels under the Judicial Service Commission Act. The Judicial Conduct Committee (JCC) found a prima facie case in September 2023, leading to a tribunal chaired by retired Judge President Bernard Ngoepe, with Judge Cynthia Pretorius and Advocate Gift Mashaba SC.

Hearings unfolded over four sittings from January to October 2025, featuring testimony from Mengo, Mbenenge, and experts. Key dates included preliminary hearings in June 2023, tribunal establishment in December 2023, and public sessions starting May 2025. On January 30, 2026, the tribunal released its report.

Tribunal's Findings: Misconduct but Not Gross

The tribunal categorized judicial misconduct into three levels: lesser (A), serious non-impeachable (B), and gross impeachable (C). It placed Mbenenge in Category B, guilty of misconduct for breaching Article 5.1 of the Judicial Code of Conduct—requiring honorable behavior befitting judicial office.

Noting the flirtatious nature at work, the tribunal deemed no sexual harassment occurred, viewing exchanges as consensual between adults. It criticized Mengo's credibility on some points and excluded certain evidence, concluding the conduct did not warrant impeachment.

JSC Deliberation and Groundbreaking Overturn

Convened on March 5, 2026, the JSC reviewed the tribunal report alongside written submissions. Diverging sharply, it classified the conduct as gross misconduct, rejecting the tribunal's narrow focus on timing and location.

The JSC emphasized the sexual content, Mbenenge's initiation and persistence, power disparity (Judge President vs. secretary), lack of remorse, and violation of judicial values like integrity and dignity. It faulted the tribunal for an objective-only harassment test, ignoring context and Mbenenge's duty to foresee inappropriateness.

"The conduct concerned is serious and constitutes an affront to the propriety of judicial office," the JSC stated, underscoring its incompatibility with constitutional standards. Full JSC Report

Details of the Inappropriate Conduct

Admitted WhatsApp exchanges revealed Mbenenge pursuing Mengo romantically and sexually, using suggestive language and emojis. He testified viewing class distinctions as outdated, citing judges marrying secretaries. Mengo maintained the advances were unwanted, responding out of deference.

The JSC highlighted how such superior-initiated flirtation poisons workplace dynamics, especially in the judiciary where impartiality and respect are paramount. No physical contact was alleged, but the digital trail proved damning.

Mbenenge's Defense and Cultural Claims

Mbenenge argued his actions reflected Xhosa courting traditions, misunderstood through Western lenses. He denied harassment, portraying exchanges as mutual, and challenged the tribunal's jurisdiction beyond workplace hours. Post-ruling, his team announced a review application, insisting the tribunal's not-guilty on sexual harassment stands.

Stakeholder Reactions: Victory for Accountability

Women's Legal Centre hailed it "historic," advancing GBV fight in judiciary. Soul City Institute welcomed recognition of power imbalances. Judges Matter stressed restoring public confidence. Dr. Lisa Vetten noted precedent for non-obvious harassment.

Critics decried tribunal leniency; supporters praised Mengo's bravery amid credibility attacks. Trending on X, opinions split between misogyny accusations and consensual adult defenses. GroundUp Analysis

The Road to Impeachment: Section 177 Process

Gross misconduct triggers Section 177: JSC submits findings to National Assembly Speaker. Parliament debates; 2/3 majority (267/400 MPs) votes removal. President implements. Precedents: Judge Hlophe (2024, political interference), Judge Motata (drunk driving).

JSC seeks submissions on suspending Mbenenge (age 65, retires at 70). He remains on special leave since 2024.

Broader Implications for South Africa's Judiciary

This rare JSC-tribunal overturn signals zero tolerance for ethical lapses. SA legal sector reports high harassment (25% women consider leaving), underscoring policy needs. Reinforces judiciary's moral authority amid GBV crisis.

Statistics show underreporting; cases like Mbenenge spotlight power abuses. Enhances complainant protections post-cross-examination scrutiny.

Public and Social Media Discourse

X buzzed with #JudgeMbenenge, debates on culture vs. ethics, GBV, judicial reform. Supporters lauded precedent; detractors cried overreach. Mainstream media covered extensively, amplifying trust erosion concerns.

Outlook: A Turning Point?

Mbenenge's challenge looms, but ruling sets benchmark. Potential impeachment eve-retirement underscores process rigor. Bolsters workplace safety, judicial integrity, inspiring victims. SA watches as accountability evolves. Daily Maverick Coverage

Photo by Timothy Barlin on Unsplash