Judge Mbenenge Tribunal - Judges Matter

Judicial Conduct Tribunal for EASTERN CAPE High Court Judge PRESIDENT SELBY MBENENGE

Eastern Cape High Court Judge President Selby Mbenenge is facing a misconduct investigation by the Judicial Conduct Tribunal, which could lead to his impeachment. His investigation arises out of a sexual harassment complaint laid against him by judges’ secretary, Ms Andiswa Mengo, who works for another judge also in the Eastern Cape.

This page discusses the progress of the misconduct complaint.

Who is Judge Selby Mbenenge?

Judge President Selby Mbenenge was born in Butterworth (eGcuwa) in the former Transkei in March 1961. He matriculated from the prestigious St John’s College in Mthatha before obtaining a B Juris (1984) and a Bachelor of Laws (1987), both from the University of Transkei (Unitra, now Walter Sisulu University).

He was a regional court prosecutor and then appointed as a state law advisor in 1987. In 1988-9 he was a law lecturer at Unitra, but later returned to the state law advisors’ office until 1990.

Mbenenge completed his pupillage at the Johannesburg Bar, and passed the Bar Exam in December 1992. He briefly returned to the state law advisors’ office before joining the Transkei Bar in Mthatha from 1993 until his elevation to the bench in 2015. He was awarded silk (senior counsel) status in 2005.

Before his permanent appointment as a judge, Mbenenge held various stints in the Labour Court and the Grahamstown, Durban and Transkei High Courts.

He has acted in several profile cases including chairing the disciplinary hearing of senior prosecutor Glynnis Breytenbach in 2012. In 2012 he represented Constitutional Court Justices Bess Nkabinde and Chris Jafta at the Judicial Service Commission proceedings regarding the allegations of the attempted improper influencing of judges against Western Cape Judge President John Hlophe.

Not long after his permanent appointment as a judge, Mbenenge was elevated to the position of Judge President of the Eastern Cape High Court (Bhisho, Gqeberha, Makhanda, Mthatha) from November 2017.

Prior to the sexual assault misconduct allegations against him, Mbenenge was more positively known for transforming the Eastern Cape High Court division through unifying the disparate seats and attracting some of South Africa’s finest legal minds to serve as judges of that court.

YOU CAN READ HIS FULL BIO HERE.

Background to the Misconduct Complaint

On 19 February 2023 the Sunday Times reported that the Ms Andiswa Mengo (an official employed at the Makhanda High Court) filed a complaint of sexual harassment against Mbenenge.

The complaint related to in-person and electronic interactions of a sexual nature between Mengo and Mbenenge, including at the high court building and over the WhatsApp messaging service, which took place between June 2021 and November 2022. Mengo complains that these interactions were unwanted, while Mbenenge says they were consensual between them. After first filing a complaint with the Office of the Chief Justice (the national government department responsible for the administration of the judiciary), the complaint was later referred to the Judicial Conduct Committee.

In light of the seriousness of the complaint, on 21 February 2023 Judges Matter issued a statement requesting Mbenenge to stand down from his official duties pending the investigation of the complaint.

Chief Justice Raymond Zondo classified the complaint as one that, if proven, would constitute gross judicial misconduct and referred it to the Judicial Conduct Committee for a preliminary hearing.

At the one-day preliminary hearing on 28 June 2023, Mbenenge was represented by a high-power legal team led by Advocates Wim Trengove SC and Olav Ronaasen SC. Mengo was represented by the Women’s Legal Centre led by attorney Chriscy Blouws.

The aim of the preliminary hearing was to hear Mbenenge’s version of events for the first time, for the JCC to assess the veracity and gravity of the complaint, and for the JCC to determine the further progress of the complaint. The hearing was presided over by Supreme Court of Appeal Judges Dumisani Zondi, Tati Makgoka and Nolwazi Mabindla-Boqwana.

On 14 September 2023 the 3-judge panel of the JCC ruled that there was a prima facie (probable) case of gross judicial misconduct against Mbenenge and which, if confirmed, will lead to his impeachment. Simultaneously, the JCC recommended that the Judicial Service Commission appoint a Judicial Conduct Tribunal to probe the matter further.

On 15 September 2023 Judges Matter issued a statement calling on the JSC to exercise its powers in terms of section 19(4) of the JSC Act and advice the president to suspend Mbenenge pending the tribunal investigation into the sexual harassment allegations against him.

On 7 December 2023 the JSC accepted the Judicial Conduct Committee’s recommendation and instructed the Chief Justice to set up a Judicial Conduct Tribunal to further probe the sexual harassment allegations against Mbenenge. At the same time, the JSC requested both the complainant and Mbenenge to put forward reasons why he should not be placed on suspension.

On 2 February 2024 the JSC decided that it was not desirable to advise the President to place Mbenenge on suspension as he was already on special leave and is unlikely to interact with the complainant, the JSC reasoned. It is not clear when Mbenenge requested or was granted the special leave.

The JSC’s decision broke with 10 years of precedent where a judge accused of gross judicial misconduct was placed on suspension pending a tribunal investigation. Currently, there were 5 judges on suspension for various allegations of gross misconduct. Some of those judges were already on medical leave at the time of the suspension. For this reason, on 20 February 2024 Judges Matter wrote to Chief Justice Zondo requesting reasons why the JSC decided not to place Mbenenge on suspension.

Judge President’s criminal complaint against Complainant

According to Sunday Times media reports, in December 2023 Mbenenge subsequently filed against Mengo for offences of crimen injuria (criminal defamation of character). It is alleged that police officers from the SA Police Service’s Anti-Corruption Unit in Pretoria visited Mengo’s Makhanda office with a warrant, asking her to hand over her cellphone and submit a warning statement for the alleged offence. She declined to do so. After their decision to not suspend, JSC Spokesperson Mvuzo Notyesi stated that the JSC were not aware that Mbenenge had laid a criminal charge against Mengo

Appointment of a Judicial Conduct Tribunal

At its meeting in April 2024 the JSC confirmed that it has appointed a Judicial Conduct Tribunal to probe Mengo’s complaint against Mbenenge.

The Tribunal Panel would be made up of retired Gauteng High Court Judge President Bernard Ngoepe, and would have retired Gauteng High Court Judge Cynthia Pretorius and Advocate Gift Mashaba SC from the Pretoria Bar as additional members. The JSC confirmed that it was still in discussion with the National Prosecuting Authority over the appointment of a senior prosecutor as evidence leader.

The terms of reference of the Tribunal are below.

Outline of the Process of the Complaint

12 January 2023 – Complaint filed (in terms of section 14 of the JSC Act).

19 February 2023 – Complaint is reported in the Sunday Times

21 February 2023 – Judges Matter issues statement calling on Mbenenge to step down

April 2023 – Chief Justice refers complaint to the Judicial Conduct Committee (in terms of section 16(1) of the JSC Act.

28 June 2023 – JCC preliminary hearing into complaint (in terms of section 16(4) of the JSC Act)

14 September 2023 – JCC ruling finding prima facie case of gross judicial misconduct and recommending appointment of a Judicial Conduct Tribunal (in terms of section 16(4)(b).

15 September 2023 – Judges Matter issues statement urging JSC to suspend Mbenenge

7 December 2023 – Judicial Service Commission upholds JCC recommendation and instructs Chief Justice to establish a Tribunal.

15 February 2024 – JSC decides not to advise president to suspend Mbenenge, citing special leave.

8 April 2024 – JSC confirms tribunal panel members and terms of reference for Judicial Conduct Tribunal.

What Happens Next?

Complaints referred to a Judicial Conduct Tribunal are those, if proven, that would most likely lead to a finding of gross judicial misconduct – the most serious category of complaints against a judge. A finding of gross judicial misconduct may kickstart the impeachment process and ultimate removal from office of the judge.

A Tribunal enquires into the allegations levelled in the complaint and submits a report of its findings to the JSC.

The Terms of Reference of what the tribunal may inquire into are decided by the JSC when it appoints the tribunal.

The Tribunal may conduct its investigation through:

collecting evidence;
conducting a formal hearing;
making findings of fact; and
making a determination on the merits of the allegations levelled against a judge accused of misconduct;

The Tribunal is entitled to subpoena documents and may call witnesses to testify at the hearing. All evidence and testimony at the tribunal must be given under given under oath. It is therefore a crime to give false evidence or testimony at the tribunal. It is also a crime for a witness to fail to attend a tribunal hearing without an excuse, or to refuse to answer questions. Anyone who hinders or obstructs the functions of the tribunal may also be found guilty of a crime.

The Tribunal may make a recommendation that a judge be removed from office through impeachment.

The tribunal will investigate, conduct a formal hearing, make findings of fact, make a determination on the merits of the allegations against Mbenenge and must begin and conclude without unreasonable delay. Should the tribunal find Mbenenge guilty of gross misconduct, then the Judge President could face impeachment by parliament as per section 177 of the Constitution.

Further details on when the Tribunal hearings will commence have not yet been communicated.

What does this mean for the judiciary?

This is the first major case of sexual harassment to reach the formal complaints process of the Judicial Service Commission. The action of referring sexual harassment to the Judicial Conduct Tribunal, and even the possibility of declaring it to be an instance of gross misconduct is significant. This not only sets the precedent that sexual harassment by members of the judiciary is taken seriously, but it also has broader implications on how victims view and interact with the justice system.

The Office of the Chief Justice has made multiple promises to work towards finalizing an anti-sexual harassment policy but it has taken several years since the promise was first made by Chief Justice Zondo in February 2022.

Mbenenge’s seniority (as the 6th most senior judge in the judicial hierarchy) also adds weight to both the complaint and the actions taken to investigate the complaint of sexual harassment.

Several studies, including one by the International Bar Association, have shown that sexual harassment, as a form of gender-based violence, is pervasive in the legal profession. Studies by the Institute African Women in Law also show that sexual harassment is a barrier to the career progress of women in both the legal profession and in the judiciary. Therefore, steps taken to investigate and eliminate sexual harassment would go some way in dispelling the myth that sexual harassment is an accepted part of the ‘boys club’ culture of the South African judiciary which, in 1994 had only 2 women but in 2024 is nearly 40% women.

However, in the same breath, the JSC’s decision to deviate from 10 years of precedent of automatic suspensions pending a tribunal investigation, and granting Mbenenge special leave in lieu of suspension, undermines the seriousness the JSC professes to take these allegations. It unfortunately signals that the Judicial Service Commission is willing to bend over backwards to protect ‘one of the boys’ who is seen as ‘too important’.

Judicial Conduct Committee finding (14 September 2023)

JSC Statement on Mbenenge Suspension (15 February 2024)

Judicial Conduct Tribunal Terms of Reference

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Judicial Conduct Tribunal for EASTERN CAPE High Court Judge PRESIDENT SELBY MBENENGE

Who is Judge Selby Mbenenge?

YOU CAN READ HIS FULL BIO HERE.

Background to the Misconduct Complaint

Judge President’s criminal complaint against Complainant

Appointment of a Judicial Conduct Tribunal

Outline of the Process of the Complaint

What Happens Next?

What does this mean for the judiciary?

Read More

Further Reading

Watch Judge Mbenenge’s JSC interview

Watch Judges Matter commentary on Mbenenge