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.
This investigation arises out of a sexual harassment complaint laid against him by judges’ secretary, Ms Andiswa Mengo, who works a a judges’ secretary in the Eastern Cape High Court.
The Tribunal is presided over by retired Gauteng High Court Judge President Bernard Ngoepe, and will begin public hearings from 13 to 24 January 2025 at Southern Sun Hotel Rosebank, Johannesburg. (Read the Media Statement)
The Media will be allowed to attend the Tribunal. Section 29(1) of the Judicial Service Commission Act establishes that tribunal hearings are in camera by default unless the Tribunal President, in consultation with the Chief Justice, determines otherwise under Section 29(3), for public interest and transparency. (Read more)
This page discusses the misconduct complaint and the tribunal process.
The judicial misconduct process against judges generally follows this process:
Stage 1: A complaint affidavit is filed with the JSC, and the Chief Justice makes a determination whether it should be dismissed as frivolous or if its serious enough to lead to a finding of serious or gross misconduct.
Stage 2: The CJ refers the complaint to the Judicial Conduct Committee, which conduct a preliminary hearing attended by both the complainant and respondent judge. The JCC may make a recommendation to the JSC that a complaint be investigated by a Judicial Conduct Tribunal.
Stage 3: The JSC (sitting without members of Parliament) receives the JCC recommendation and, if accepted, establishes a Judicial Conduct Tribunal to investigate the allegations.
Stage 4: A Tribunal investigates the complaint, including hearing witness testimony and cross examination, and accessing documents. The Tribunal makes findings of guilt or or not guilty, and submits a report to the JSC.
Stage 5: The JSC receives the tribunal report and, based on the findings of the tribunal, may confirm a guilty or not guilty finding. The JSC also decides, if a judge is found guilty of gross misconduct, to recommend to Parliament that a judge is impeached.
Stage 6: Parliament receives the JSC’s recommendation of impeachment and holds a debate in the National Assemble. Two-thirds of the MPs (267 of 400) need to vote ‘yes’ for a judge to be removed from judicial office through impeachment. The Speaker must communicate the National Assembly’s decision to the president.
Stage 7: The President receives the National Assembly’s decision and must implement it by setting the date on which the judge is officially removed from office. The president has no choice.
See: GroundUp: Explainer: How a judge gets impeached (14 August 2023, Mbekezeli Benjamin)
23 January 2023 – Complaint filed with Judicial Conduct Committee (sec 14 of 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 (sec 16(1) of JSC Act).
28 June 2023 – JCC preliminary hearing into complaint (sec 16(4) of JSC Act).
14 September 2023 – JCC ruling finding prima facie case of gross judicial misconduct and recommending appointment of a Judicial Conduct Tribunal (sec 16(4)(b) of JSC Act).
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.
24 March 2024 – Chief Justice Zondo confirms Judicial Conduct Tribunal terms of reference, and members of the tribunal panel.
7 October 2024 – A pre-hearing meeting is held between the Evidence Leader, Mbenenge and Mengo’s legal teams to finalise outstanding issues for the hearing.
21 December 2024 – Tribunal President Ngoepe rules that only parts of the sexual harassment complaint will be dealt with in a public hearing, while the rest will be behind closed doors.
13 January 2025 – The Judicial Conduct Tribunal begins its public hearings. (Read the Media Statement)
Judge President Selby Mbenenge was born in eGcuwa (Butterworth) in the former Transkei area of the Eastern Cape in March 1961. He matriculated from the prestigious St John’s College in Mthatha, and later obtained a B Juris (1984) and LLB (1987) law degrees, 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. From 1988 to 1989 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 as an acting judge in the Labour Court and the Grahamstown, Durban and Transkei High Courts.
He has acted in several high profile cases, including chairing the disciplinary hearing of senior prosecutor Glynnis Breytenbach in 2012. In 2011 he represented Constitutional Court Justices Bess Nkabinde and Chris Jafta at the Judicial Service Commission proceedings regarding the allegations that Western Cape Judge President John Hlophe had attempted to improper influence both judges
Not long after his permanent appointment as a judge in 2015, Mbenenge was elevated to the position of Judge President of the Eastern Cape High Court (Bhisho, Gqeberha, Makhanda, Mthatha) from November 2017.
Mbenenge is highly regarded as a senior lawyer. As judge president, he is credited with 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. He is currently the second most senior judge president and the sixth most senior judge in judicial leadership in South Africa.
On 23 January 2023, Ms Andiswa Mengo, a judges’ secretary employed at the Eastern Cape High Court, Makhanda, filed a complaint of sexual harassment against Judge President Selby Mbenenge.
The complaint related to in-person and electronic interactions of a sexual nature between Mengo and Mbenenge. These interactions were allegedly at the High Court building in Makhanda, and over the WhatsApp messaging service. These interactions allegedly took place between June 2021 and November 2022, both in person and online.
Mengo complains that these interactions were unwanted and unwelcome by her, 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 through a sworn affidavit by Ms Mengo.
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.
See: Judges Matter statement calling for Mbenenge to step down (21 February 2023).
In terms of section 16(1) of the Judicial Service Commission Act, the Chief Justice is required to assess a complaint and satisfy themselves that, if the complaint is established, it is likely to lead to a finding of gross misconduct, the Chief Justice must refer it to the Judicial Conduct Committee.
During this preliminary stage of the complaint, only the complainant’s statement is on record – the judges’ version of version is not yet on record.
In May 2023 Chief Justice Raymond Zondo classified Ms Mengo’s complaint as one that, if proven, would constitute gross judicial misconduct and referred it to the Judicial Conduct Committee for a preliminary hearing.
The Judicial Conduct Committee convened a one-day preliminary hearing on 28 June 2023.
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.
This is in terms of section 16(2) and (3) of the JSC Act.
The hearing was presided over by Supreme Court of Appeal Judges Dumisani Zondi, Tati Makgoka and Nolwazi Mabindla-Boqwana.
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.
On 14 September 2023 the three-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. The JCC ruling is in terms of section 16(4) of the JSC Act.
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.
See: JCC ruling on Mbenenge (14 September 2023)
See: Judges Matter statement on JCC ruling and suspension (15 September 2023)
At its meeting on 7 December 2023, the ‘small JSC’ (i.e. the Judicial Service Commission sitting without the 10 members of Parliament) accepted the Judicial Conduct Committee’s ruling that the complaint was one of gross misconduct that might lead to Mbenenge’s impeachment in terms of section 177(1)(a) of the Constitution, read with section 19(1)(a) of the JSC Act. The small JSC also accepted the JCC’s recommendation of appointing a judicial conduct tribunal to further investigate the complaint.
The small JSC therefore instructed the Chief Justice to set up a Judicial Conduct Tribunal to further probe the sexual harassment allegations against Mbenenge.
At the same time, and acting in terms of section 19(3) of the JSC Act, the small JSC requested that both the complainant, Mengo, and Mbenenge put forward reasons why he should not be placed on suspension, in terms of section 19(4) of the JSC Act.
In a statement on 2 February 2024, the JSC announced that it had decided that it was not desirable to advise the President to place Mbenenge on suspension. It did so on the reason that he was already on special leave and is unlikely to interact with the complainant, the JSC reasoned. It is not clear when exactly Mbenenge requested or was granted the special leave.
The JSC’s decision broke with 10 years of precedent, in which a judge accused of gross judicial misconduct was automatically placed on suspension pending a tribunal investigation. Currently, there were five 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. Zondo replied in May 2024, reiterating the same reasons the JSC gave, adding that he was the one who granted Mbenenge special leave (without indicating the date), and that, in any event, Mbenenge informed Zondo if he would be going to the court on official business.
See: JSC statement on appointment of Mbenenge Tribunal
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
Read: Sunday Times “Top Judge Lays tit-for-tat charge.” Ray Hartle, 18 February 2024.
At its meeting in April 2024 the JSC once again confirmed that it has appointed a Judicial Conduct Tribunal to probe Mengo’s complaint against Mbenenge. This is in terms of Chapter 3 of the JSC Act.
Complaints referred to a Judicial Conduct Tribunal are those, if proven, 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 judge of the .
Tribunal members
The Mbenenge Tribunal panel is made up of retired Gauteng High Court Judge President Bernard Ngoepe, and retired Gauteng High Court Judge Cynthia Pretorius and Advocate Gift Mashaba SC from the Pretoria Bar as additional members.
The evidence leader is senior state Advocate Salomé Scheepers, who is seconded from the National Prosecuting Authority’s Sexual Offences Unit in terms of section 24(1) of the JSC Act.
Process of investigation
A Tribunal investigates the allegations levelled in the complaint and submits a report of its findings to the JSC.
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 must begin and conclude its work without unreasonable delay.
Tribunal terms of reference
The Terms of Reference of what the tribunal may inquire into are decided by the JSC when it appoints the tribunal.
In March 2024, Chief Justice Raymond Zondo confirmed he Mbenenge Tribunal’s terms of reference to be that:
- The Tribunal must investigate all the allegations contained in Mengo’s complaint affidavit, including allegations of sexual harassment and impropriety;
- The Tribunal must investigate if these allegations prove that Mbenenge is guilty of gross misconduct in terms of section 177 of the Constitution;
- The Tribunal must prepare a report on these findings and deliver it to the JSC.
In its report to the JSC, the Tribunal must set out its factual findings, whether there have been breaches of the Code of Judicial Conduct, whether the judge is guilty of gross misconduct in terms of section 177 of the Constitution. Based on these findings, the Tribunal may make a recommendation that a judge be removed from office through impeachment.
The JSC then has to consider the tribunal findings and recommendations, and formulate its own decision on whether a judge has been found guilty (or not guilty) of gross misconduct in terms of section 177 of the Constitution. If guilty of gross misconduct, the JSC must decide if this justifies the judge being removed from office through impeachment. The JSC must then make this recommendation to the National Assembly by sending the tribunal report and its own decision to the Speaker.
The hearings of the Mbenenge Tribunal will run for 8 days from Monday, 13 January 2025, to Friday, 24 January 2025, and will take place at the Southern Sun Rosebank Hotel in Johannesburg.
In a ruling delivered in December 2024, Tribunal President Judge Bernard has ruled that the hearings will be hybrid. That means parts of the hearings will be in public (including being broadcast on television) while the rest will be in camera (behind closed doors). His reasoning is that certain of the allegations against Mbenenge may be damaging to the Judiciary if they ultimately found not be true, and such damage is irreparable. Therefore the broadcast of such allegations would not be in the public interest.
Both the SABC and the complainant, Mengo, had argued that it is in the public interest (both for judicial accountability and for dealing with sexual and gender-based violence) for the entire hearing to be public. Mbenenge argued that the entire hearing should be behind closed doors.
Tribunal President Ngoepe ruled that all aspects of the Tribunal will be heard in camera (behind closed doors).
The only aspects of the Tribunal hearings that will be public are the WhatsApp text messages exchanged between Mbenenge and Mengo, including translations of the messages written in isiXhosa. But this is limited to only those messages and images that Mbenenge agrees were sent between them, and excludes those that Mengo alleges were sent but subsequently deleted.
The ruling also explicitly excludes WhatsApp messages and/or pictures relating to incidents that occurred in Mbenenge’s chambers at the High Court building. These will also be dealt with in camera.
This is the first major case of sexual harassment to reach the formal complaints process of the Judicial Service Commission. It is the first time a judge is being formally investigated by a tribunal for sexual harassment. The gravity of these proceedings are increased by Mbenenge’s status in the judiciary: he is the second most-senior judge president in the country, and is the sixth most-senior judge in judicial leadership. If found guilty, he might just be the third judge to face judicial impeachment in the history of South Africa.
The Judicial Service Commission’s action of referring the sexual harassment complaint to the Judicial Conduct Tribunal, on the grounds that it might constitute gross misconduct, indicates the seriousness of the complaint. The JSC’s actions in this complaint sets a precedent for other similar complaints of sexual harassment by members of the judiciary. These actions also have broader implications on how complainants view and interact with the justice system – and whether there is justice at all.
Transparency in judicial conduct proceedings
We disagree with Tribunal President Ngoepe’s view that the tribunal hearings being fully public would cause irreparable harm to the judiciary’s reputation, and is thus not in the public interest. The South African public holds the judiciary in high esteem, and would understand that sometimes baseless allegations would be made against judicial officers. If these allegations are dealt with in a speedy, transparent and rigorous process, and subsequently found to be unmeritorious and dismissed, this would enhance the reputation of the judiciary. South Africans would respect the judiciary for being willing to take action against their own. The opposite, of shrouding serious allegations in secrecy, does the opposite: it creates an unfortunate perception that judges are dealt with differently from any other person accused of serious misconduct, whether in criminal court or any other proceeding.
Slow progress in the complaint
While this complaint has made positive progress, it is still worrying that it has taken so long to proceed. In an ideal world, a judicial misconduct complaint should be wrapped up in six months. It is regrettable that it has taken two years from the filing of the complaint to the first tribunal hearings. Judges Matter once again calls for urgent reform in how the JSC deals with these complaints, including legislative amendments to streamline the complaints process and increase the capacity of the JSC’s disciplinary functions.
- Judge President Selby Mbenenge – Judges Matter profile
- Judicial Conduct Committee finding (14 September 2023)
- JSC Statement on Mbenenge Suspension (15 February 2024)
Further Reading:
- Bar News “New Silk, Mbenenge SC”, April 2005.
- Sowetan Live “Renewed Call for EC Judge President to step down: sexual harassment allegations spooks legal eagle” Adrienne Carlisle, 18 September 2023.
- News 24: “JCC hears case in which Eastern Cape Judge President faces sexual harassment complaint” Ray Hartle, 3 July 2023.
- The Citizen “Eastern Cape Top Judge faces possible impeachment: the Judicial Conduct Committee (JCC) has referred the matter to a judicial conduct tribunal for further investigations”, Vukosi Maluleke, 17 September, 2023.
- Mail & Guardian “Discomfort over JSC’s decision on Mbenenge deepens”, Earnie Ferreira, 20 February 2024.
- Daily Maverick “Sexual Harassment and the Courts: Sexual harassment of women in the SA legal profession higher than global average, study finds” Zikhona Ndlebe, 29 September 2023.
- SABC News “Ramaphosa advised not to suspend EC Judge President Mbenenge”, Canny Maphanga, 15 February 2024.
- Polity: “Eastern Cape top judge Selby Mbenenge to face tribunal over sexual harassment claim”, by Newa24Wire, 7 December 2023.
- Watch: SABC News | Sexual harassment complaint against a top Judge referred to the Tribunal for further inquiry.
- Read: Judges Matter Media Statement calling for Judge President accused to step down.
- Judges Matter “Media statement: Judges Matter statement on sexual harassment investigation in Eastern Cape Judge President”, Alison Tilley & Zikhona Ndlebe, 15 September 2023.
- News 24 “Eastern Cape top Judge Selby Mbenenge to face tribunal over sexual harassment claim”, Ray Hartle, 7 December 2023.
- Watch Judge Mbenenge’s JSC interview.
