Judge Mbenenge Tribunal

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)

24 January 2025 – The Judicial Conduct Tribunal is postponed to May 2025.

5 May 2025 – The second sitting of the Judicial Conduct Tribunal commenced, until 16 May 2025.

30 June 2025 – The third sitting of the Judicial Conduct Tribunal commenced, until 11 July 2025.

21 October 2025 – The forth and final sitting of the Judicial Conduct Tribunal commenced, until 22 October 2025.

 

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.

See: Judges Matter: Judge Selby Mbenenge candidate bio 

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: Sunday Times “Eastern Cape judge-president faces sexual harassment probe”, Ray Hartle, 19 February 2023.

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.

Read: News 24: “JCC hears case in which Eastern Cape Judge President faces sexual harassment complaint” Ray Hartle, 3 July 2023. 

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. At the time when the decision was made not to suspend Mbenenge, 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

See: JSC statement on suspension of Mbenenge

Read: Mail & Guardian “Discomfort over JSC’s decision on Mbenenge deepens”, Emsie Ferreira, 20 February 2024.

Watch: Judges Matter reaction to non-suspension of Mbenenge

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:

1. collecting evidence;
2. conducting a formal hearing;
3. making findings of fact; and
4. 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:

1. The Tribunal must investigate all the allegations contained in Mengo’s complaint affidavit, including allegations of sexual harassment and impropriety;
2. The Tribunal must investigate if these allegations prove that Mbenenge is guilty of gross misconduct in terms of section 177 of the Constitution;
3. 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.

See: Mbenenge Tribunal terms of reference

The first sitting of the Judicial Conduct Tribunal against Mbenenge ran for 8 days from Monday, 13 January 2025, to Friday, 24 January 2025. The Judicial Conduct Tribunal was held at the Southern Sun Rosebank Hotel in Johannesburg.

On the last day of the Judicial Conduct Tribunal, Tribunal President Judge Ngoepe postponed the hearing to 5 May 2025 until 16 May 2025.

In a ruling delivered in December 2024, Tribunal President Judge Ngoepe 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.

 

See: Tribunal ruling on public hearings

Read: GroundUp “Sexual harassment complaint against Eastern Cape Judge President set for January”  Tania Broughton, 10 December 2024 

 

The fourth sitting of the Judicial Conduct Tribunal against Judge President Mbenenge took place on 21 October 2025 and consisted of the parties’ closing arguments. The hearing was held at the Southern Sun Rosebank Hotel in Johannesburg.

The sitting consisted of oral arguments by the evidence leader Advocate Salome Scheepers, Advocate Nasreen Rajab-Budlender representing Ms Andiswa Mengo, and Advocate Muzi Sikhakhane representing Judge President Mbenenge.

The arguments focused solely on whether Judge President Mbenenge’s conduct constitutes sexual harassment, and whether this misconduct meets the requirements for gross misconduct under the section 14(4) of the Judicial Services Commission Act and Article 5 of the Judicial Code of Conduct.

Mengo’s counsel argued that although the Judicial Code of Conduct does not refer to sexual harassment as a listed ground of misconduct, harassment is a violation of human dignity and equality and is manifestly incompatible with judicial conduct.

They further argued that if a reasonable person objectively reads the WhatsApp conversations between the parties, although there was no “outright no” by the complainant, they counted 13 instances where Ms Mengo resisted the Judge President’s advances. Furthermore, the evidence submitted is enough to prove on a “balance of probabilities” that Mbenenge’s advances were unwanted and that this constitutes sexual harassment.

They concluded that Mbenenge acted dishonourably in that a judicial officer is not permitted to use his position of power to advance private interests, that judges are held to the highest ethical standards and are expected to behave professionally with respect and dignity, and are to avoid exploitative, sexist and humiliating conduct.

The counsel for the respondent argued that there is no policy in place which prohibits flirting or workplace relations, and based on the evidence put before the commission, there is no evidence showing that Mbenenge’s advances were unwanted. Therefore, one cannot say that the Judge President acted dishonourably.

They further challenged the nature of the evidence by arguing that there wasn’t full disclosure of the WhatsApp correspondence between the parties, and that the only messages put forward were those which painted the Judge President “in a bad light”.

They concluded that they accept that power dynamics exist, but this does not mean that the Judge President abused the power he holds.

Judge President Ngoepe, in his capacity as the chairperson, noted that Mbenenge’s persistent messages to Mengo alone cannot be said to constitute sexual harassment. The question to be determined is whether the advances were “unwanted”? He further noted that if the test for sexual harassment is “on a balance of probabilities”, then a reasonable person who objectively views the WhatsApp messages submitted to the Commission would assume that the relationship was consensual, as there was no “outright no” said by the complainant.

The Tribunal requested that Mengo’s counsel submit a document containing all the instances where the complainant could be considered to have said “no” to Mbenenge’s advances.

The Tribunal will now have to determine whether Mbenenge’s conduct constitutes misconduct or gross misconduct and submit this report to the JSC.

 

The third sitting of the Judicial Conduct Tribunal against Judge President Mbenenge ran for seven days, from 30 June 2025 until 11 July 2025. The hearing was held at the Southern Sun Rosebank Hotel in Johannesburg and was adjourned to October for the parties to submit written arguments.

The seven-day sitting unpacked the testimonies of experts, witnesses, and the Judge President regarding the 837 WhatsApp messages and pictures exchanged between the two parties. These included lengthy discussions on the interpretation of certain emojis—such as peeled bananas—explicit pictures, and GIFs sent by Mbenenge, and his persistent requests for revealing photos of Mengo.

In this sitting, the following witnesses and experts were called to testify:

• Dr Lisa Vetten, a gender-based violence expert, testified that from an assessment of the WhatsApp exchanges, it was clear Mbenenge’s advances were persistent and unwanted. Further, she explained that due to the workplace hierarchy, any perceived consent by Mengo amounted to coercion and not true consent.

• Dr Vincent Mello, an information and communication technology expert, testified on the authenticity of the explicit pictures allegedly sent by Mbenenge and the literal interpretation of his use of emojis. He noted that many of the disputed images, sent via WhatsApp, did not reflect who sent them or when they were sent. He initially maintained a literal interpretation of the emojis before conceding that some had sexual connotations.

• Ms Zinhle Nqayi, Mbenenge’s secretary at the time, testified that the occurrence of the alleged sexual act on 14 November 2022 was doubtful. She also stated that it was “normal” for the Judge President to comment on how women court staff and lawyers dressed.

• Ms Unathi Sogoni, a stenographer at the Makhanda High Court, was called to testify about her former friendship with Mengo to assess Mengo’s credibility. However, former Judge President Ngoepe ruled her evidence inadmissible due to its irrelevance and hearsay nature.

Following the witnesses, Judge President Mbenenge testified that the relationship with Mengo was consensual, and he would not have persisted had she firmly said “no”. He argued that his advances were welcomed and reciprocated and that he was open to pursuing a sexual and romantic relationship. He maintained that his marriage was irrelevant to the matter and that this was a legal, not moral, inquiry.

Central to the proceedings were questions of consent, professionalism, and hierarchy in the judicial workplace. Mbenenge denied that any power dynamics were at play, asserting that he never “pulled rank” and that normal workplace conduct rules do not apply to judicial officers.

The last day of the hearing dealt with the complaint laid by Mengo, focusing on screenshots of WhatsApp messages between the two, which she had posted to her status and were later published by the Daily Dispatch. This followed Mbenenge’s decision to decline a reconciliation “round-table” discussion, stating he was “gutted” by the allegations. The matter was escalated to the Office of the Chief Justice, and Mbenenge subsequently laid a defamation case against Mengo.

The fourth sitting will include final arguments, with Advocate Muzi Sikhakhane representing Mbenenge and Advocate Nasreen Rajab-Budlender representing Mengo.

The tribunal is scheduled to resume on 21 and 22 October 2025.

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.

Tribunal Panel Members:
Retired Gauteng High Court Judge President Bernard Ngoepe (Chairperson)
Retired Gauteng High Court Judge Cynthia Pretorius
Advocate Gift Mashaba SC (Pretoria Bar)

The Draft Report (in terms of section 33 of the Judicial Service Commission Act) for the “Mbenenge Tribunal” was published on 31 January 2026, almost four months after the final oral arguments, which took place on 21 October 2025.

The Tribunal stated that the “real” question is whether there was sexual harassment. If yes, there should be a finding of gross misconduct.

The complaint centred on 837 WhatsApp messages exchanged between the parties between June 2021 and November 2022. The complainant (Ms Mengo) alleged that Judge President Mbenenge sent jocular, flirtatious and salacious messages, including explicit pictures. The respondent admitted to sending the messages but contended that they were consensual and not unwelcome.

The report dealt with the following:

1. The disputed office incident

2. The disputed pictures

3. The disputed messages

The Tribunal stated that there would be no presumption of guilt and that it would not adopt a “biased view for or against either party simply because the complainant was a woman in a junior position relative to a man accused of sexual harassment”, as this would make the outcome “predetermined”.

The Tribunal adopted a “balance of probabilities” test and assessed whether a reasonable person, objectively viewing the WhatsApp messages, would assume that the relationship was consensual.

As outlined in the report, the Judicial Conduct Tribunal found the following:

• The respondent admitted that he sent the WhatsApp messages, but that they were not unwelcome and therefore did not constitute sexual harassment.

• The respondent is guilty of misconduct, but not gross misconduct, and this will therefore not result in impeachment.

• The Tribunal found that Mengo had “actively participated” and had “crafted and sent many flirtatious and salacious messages” to the respondent, which were “inconsistent with the behaviour of someone being coerced”.

• The complainant is not a credible witness.

• There is insufficient evidence on a balance of probabilities.

• There was no evidence that the alleged office incident took place.

• There was no evidence that the disputed messages and pictures were sent or received by the respondent.

• The flirtation took place between two adults.

• The messages were not for public consumption.

• The majority of the messages were exchanged after working hours.

• The JCC was not privy to all the WhatsApp messages that were exchanged.

• The respondent is not guilty of gross misconduct, gross incompetence and/or gross incapacity under section 177 of the Constitution.

• The respondent is guilty of serious non-impeachable misconduct.

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Sexual harassment

The Tribunal decided that this was not an instance of sexual harassment and therefore did not constitute gross misconduct. The Tribunal stated that it made this determination in accordance with the law and the proven facts, the filed affidavits, the WhatsApp messages, the oral evidence, the expert evidence and the real evidence.

It stated that the test for whether a message is wanted or not is based on how a reasonable person would objectively interpret the messages. It also considered the parties’ intentions in certain messages and emphasised that context is important.

The Tribunal found that it was not sexual harassment because, when the respondent suggested that they have sexual relations, the complainant had “politely rebuffed him, quoting a Bible verse and stating it was impossible”. Thereafter, the respondent “immediately accepted this rebuff”. The Tribunal held that this behaviour indicated that the respondent had not harassed the complainant, as he had “respected the boundary once it was clearly established”.

The Tribunal found that the flirtation was between adults both conversant with matters of the heart, and that the messages were not for public consumption.

The Tribunal found “that there was an objective reasonable belief on the part of the respondent that the flirtatious exchange of the messages was not unwelcome; in this respect, [it] pointed out the established fact that a number of flirtatious – others very salacious – messages were by the complainant herself”.

Ultimately, it found that Mbenenge’s persistent messages to Mengo alone cannot be said to constitute sexual harassment. The question to be determined was whether the advances were “unwanted”.

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Power dynamics

On the issue of power dynamics, the Tribunal rejected the consideration of power dynamics and stated that rank does not play a role, and that one does not differentiate between rich and poor.

It stated that the theory of power dynamics is not helpful where there is no evidence of abuse of power, whether overt or covert. Abuse of power cannot be assumed merely because one person is more senior than the other, and that “in a democratic society the law could not prohibit associations – including flirtatious ones – across lines of seniority and wealth”.

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Expert evidence

On the expert evidence submitted, the Tribunal rejected Dr Lisa Vetten’s testimony that the power imbalance between the complainant and the respondent created “coercive circumstances”. The Tribunal found that there had been “no evidence of overt or covert coercion or abuse of power” deployed to coerce Mengo’s participation. The issue, rather, was whether “a reasonable person” could have viewed her “active and salacious responses” as a sign of consent.

It further stated that the cross-examination of Dr Lisa Vetten revealed that her analysis “rested on partial evidence, translated and summarised through a legal filter that omitted linguistic and cultural context”.

The Tribunal stated that “if both parties understand what an emoji represents in their conversation, an expert cannot override that meaning to create a different narrative”.

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Credibility

Omission of certain WhatsApp messages

On credibility, the Tribunal held that the complainant did not submit all the WhatsApp messages and that she submitted only those which suited her, and was therefore dishonest.

The Tribunal found that the complainant had omitted her own flirtatious and salacious messages to the respondent in her statement, and that she presented a selective version of the WhatsApp exchange which excluded evidence of her own active participation. It stated that this omission did immeasurable harm to her case.

It also found various inconsistencies in her testimony, particularly regarding the “East London meeting” and her explanations for continuing to engage with the respondent.

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The “Gauteng Statement” and the “Eastern Cape Statement”

The Tribunal examined two complaints filed by the complainant: the “Gauteng Statement”, made in December 2022, and the “Eastern Cape Statement”, made in January 2023. The former was a JCC complaint form assisted by JSC law adviser Kutlwano Moretlwe, which was allegedly “misplaced” by then Chief Justice Raymond Zondo. The latter complaint was filed as a sworn affidavit and became the formal complaint that proceeded to the Tribunal.

The Tribunal focused on fundamentally contradictory accounts between Mengo and Moretlwe regarding how these complaints were prepared, finding this critical to assessing Mengo’s credibility.

Mengo claimed that she filed the first complaint on 7 December 2022 without making a copy because she did not have her laptop with her. She testified that, when instructed to file a new complaint in affidavit form, she did not have access to the first complaint and had to recreate it from memory. According to Mengo, Moretlwe stayed with her in her hotel room until after midnight to complete the statement on Moretlwe’s laptop.

However, Moretlwe’s testimony directly contradicted this account. She stated that Mengo had her laptop in her possession and typed parts of the complaint herself, explaining that Mengo had brought her laptop to finalise a judgment she was working on.

Moretlwe testified that she left around 9pm, not after midnight, and that Mengo had typed the complaint herself on her own laptop. She further stated that she did not give Mengo a copy of the complaint because Mengo had already saved it on her own laptop.

The Tribunal found this contradiction significant because the second statement was, in certain parts, identical to the initial one, including grammatical mistakes, word spacing and punctuation marks. If Mengo had her laptop and typed the first complaint herself, as Moretlwe testified, then she would have had access to it when writing the second complaint. The identical wording, including spacing and punctuation errors, suggested that she copied from the first complaint rather than recreating it from memory as she claimed.

The Tribunal further stated that she attempted to cast Moretlwe, who had no interest in the matter and had assisted her in compiling her complaint, as not only lying but as someone with a nefarious agenda against her.

The Tribunal found it “bad enough for the complainant to persist with the obvious lie that she did not have a copy of the Gauteng Statement when she produced the Eastern Cape Statement”, but considered it “even more worrisome” that she told further lies to maintain that first lie, in the process trying to cast Moretlwe as a liar.

The Tribunal found this issue important because it spoke to Mengo’s credibility as a witness and whether she was fundamentally truthful. It relied on this finding and reasoned that it could not trust her testimony on the more disputed facts, such as whether the advances were unwelcome.

The Tribunal emphasised that it did not disbelieve Mengo simply because she is a woman, but because her evidence showed that she had lied. This credibility issue became central to its assessment of her overall testimony and its ultimate findings in the case.

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Finding of misconduct

Despite finding no gross misconduct, the Tribunal considered whether Judge President Mbenenge’s actions contravened Article 5.1 of the Code of Judicial Conduct, which states: “A judge must always, and not only in the discharge of official duties, act honourably and in a manner befitting judicial office.”

The Tribunal found that Judge President Mbenenge’s conduct amounted to misconduct because he initiated and conducted a flirtatious relationship with Mengo at the workplace and during working hours.

It found that Mbenenge violated section 5.1 of the Code of Judicial Conduct by:

1. Initiating the flirtation by asking personal questions unrelated to work

2. Abusing state time by conducting the flirtation during working hours

3. Engaging in conduct that fell short of the honourable behaviour expected of a judge

Next steps

As of 12 February 2026:

Before the JSC makes its decision, both parties may still submit written arguments for or against the Tribunal’s ruling, including on the question of guilt and sanctions.

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JSC consideration

The JSC must:

1. Consider the Tribunal’s report

2. Review written submissions from both parties

3. Make a final determination on guilt

4. Decide on sanctions if misconduct is confirmed

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Sanctions available

The sanction will be determined later in the process and will depend on the circumstances.

Section 17(8) of the JSC Act sets out sanctions for serious non-impeachable misconduct findings, which include:

1. An apology to the complainant

2. A reprimand

3. A written warning

4. Compensation to the extent necessary

5. Appropriate counselling

6. Attendance at a specific training course

7. Any other appropriate corrective measures

Read the full report here.
Read our explainer article here.

On 16 April 2026, the Judicial Service Commission (JSC) published its report (decision taken on 5 March 2026), finding Judge President Mbenenge guilty of gross misconduct, thus overturning the Judicial Conduct Tribunal’s earlier finding of lesser, non-impeachable misconduct. The JSC held that Mbenenge contravened section 5.1 of the Code of Judicial Conduct, which requires that “a judge must always, and not only in the discharge of official duties, act honourably and in a manner befitting judicial office.”

The JSC found that the Tribunal misdirected itself by limiting its assessment to whether the conduct occurred at the workplace. It should have considered the nature, content, and context of the exchanges, which were initiated and sustained by Mbenenge over time. By characterising the matter as a “flirtatious relationship” at work and during work hours, the Tribunal understated the significance of the conduct and failed to properly assess the extent to which section 5.1 was contravened.

The JSC held that the communications initiated with Ms Mengo were grossly inappropriate for a judicial officer, particularly given the power imbalance. It rejected the Tribunal’s finding that no sexual harassment occurred, noting that the Tribunal applied an incorrect standard The tribunal adopted a purely objective standard, whereas a balanced approach combining objectivity and subjectivity, which takes into account both the position of the complainant and the conduct of the respondent.

The JSC found that the Tribunal incorrectly concluded that the JP’s advances were cumulatively and wholly welcome, instead of considering whether particular incidents or exchanges viewed individually and in their proper context constituted unwelcome conduct of a sexual nature

Taken together, the JSC found Mbenenge guilty of gross misconduct.

The Commission then invited the parties to make written submissions on whether it should advise the President, under section 177(3) of the Constitution, to suspend Mbenenge pending the removal process under section 177(1).

Next Steps

A gross misconduct finding by the JSC triggers the impeachment process under section 177(1)(a): the finding goes to the National Assembly, which may pass a resolution calling for removal. If passed by a two-thirds majority, the President must remove the judge from office.

Judge President Mbenenge has launched a two-part application comprising of an interim interdict and a formal review application.

Pending the review, he seeks to prevent the Judicial Service Commission (JSC) from implementing its decision to initiate impeachment and suspension processes, and to interdict the National Assembly and the President from acting upon the JSC’s recommendation of the finding of gross misconduct and removal from judicial office, and to interdict the President from suspending or removing him from his position as the Judge President.

He also seeks a formal review to declare unlawful and overturn the JSC’s decision to reject the Tribunals finding of lesser misconduct, and its decision to substitute it with a finding of gross misconduct and removal.

In the alternative, he requests that the court set aside the Tribunal’s finding of lesser non-impeachable misconduct (misconduct simpliciter) for initiating a flirtatious WhatsApp relationship with Ms Mengo at work, and an order for the JSC and the Tribunal to pay costs.

Why this matters

Judges Matter is committed to strengthening judicial integrity and public trust in the courts. Gross misconduct by judicial officers undermines dignity, equality and confidence in the justice system, and addressing it requires clear standards, effective accountability, and transparency.

This finding confirms that the JSC treats sexual harassment as gross misconduct, an impeachable offence, reinforcing the Judiciary’s zero-tolerance approach.

Judges are entrusted with upholding dignity, equality and freedom; when they breach the judicial code themselves, it weakens the moral authority of the courts. The judiciary plays a critical role in combating gender-based violence in South Africa and must hold itself to the same standard.

How these misconduct matters conclude sends a signal to complainants, the legal profession and the public about how seriously the judiciary treats both misconduct and its own integrity.

• See JSC Report Mengo v Mbenenge JP matter
• See also Judges Matter Media Statement
• See also JSC finds Mbenenge guilty of gross misconduct

The Judicial Service Commission (JSC) has resolved to advise President Cyril Ramaphosa to suspend Eastern Cape Judge President Selby Mbenenge from office while Parliament considers whether he should be removed from office. (Read the Media Statement)

The decision follows a meeting held on 7 July 2026 in terms of section 20(1) of the Judicial Service Commission Act, where the JSC considered written submissions from the parties on whether it should recommend Judge President Mbenenge’s suspension under section 177(3) of the Constitution.

The JSC resolved that the President should suspend Judge President Mbenenge from performing his judicial duties pending the National Assembly’s decision on the matter.

The recommendation marks the next significant step in the judicial misconduct process. Following the Judicial Conduct Tribunal’s finding that Judge President Mbenenge committed gross misconduct, the matter now moves into the constitutional impeachment process. If the President accepts the JSC’s advice, Judge President Mbenenge will be suspended while Parliament considers whether to adopt the JSC’s finding. A two-thirds majority in the National Assembly is required before a judge can be removed from office.

Read more:

• Media Statement: JSC decision on Judge President Mbenenge Tribunal
• Business Day: Suspend judge Mbenenge after gross misconduct finding, JSC urges Ramaphosa
• GroundUp: Disgraced EC Judge President Selby Mbenenge to be suspended
• News24: JSC recommends Judge Mbenenge’s suspension over sexual harassment
• Algoa FM: JSC urges Ramaphosa to suspend EC Judge President Selby Mbenenge
• Inside Politics: JSC recommends suspension of Eastern Cape Judge President Mbenenge

 

• 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.