[Judges Matter Media Statement] JSC decision on Judge Mbenenge

JUDGES MATTER STATEMENT

17 APRIL 2026

For Immediate Release

JUDGES MATTER WELCOMES THE JUDICIAL SERVICE COMMISSION’S DECISION ON THE COMPLAINT LODGED BY MS ANDISWA MENGO AGAINST JUDGE PRESIDENT SELBY MBENENGE OF THE EASTERN CAPE DIVISION OF THE HIGH COURT

Judges Matter welcomes the Judicial Service Commission’s (JSC) finding that the conduct of Judge President Mbenenge constitutes gross misconduct in terms of section 177(1)(a) of the Constitution.

The Commission will accordingly submit its findings, together with reasons and a copy of the report, to the Speaker of the National Assembly in accordance with section 20(4) of the JSC Act. The Commission has also invited the parties to make written submissions on whether it should advise the President, in terms of section 177(3), to suspend Judge President Mbenenge pending the process set out in section 177(1).

The Commission’s report

In its report, the JSC confirmed that the Tribunal correctly considered whether Judge President Mbenenge’s conduct amounted to misconduct, and whether this misconduct was of a lesser, non-impeachable nature or constituted gross misconduct. The JSC agreed with the Tribunal that the Judge President contravened section 5.1 of the Code of Judicial Conduct, which provides that “a judge must always, and not only in the discharge of official duties, act honourably and in a manner befitting judicial office.”

[Read the report]

The extent of the Judge President’s misconduct

The JSC, however, departed from the Tribunal’s report. By characterising the matter as merely “a flirtatious workplace relationship,” the Tribunal understated the seriousness of the admitted conduct. The Tribunal failed to adequately consider the nature, content, and context of the conduct, the fact that it was initiated by Judge President Mbenenge, and that it was sustained over an extended period, all of which are directly relevant to assessing the extent of the contravention of section 5.1.

The Tribunal’s failure to consider power dynamics

The JSC found the nature and content of the communication to be grossly inappropriate for a person holding judicial office, especially that of a Judge President, and particularly in relation to someone in the complainant’s position. This conduct is “incompatible with the standard of honourable behaviour and propriety required of judicial office.”

The JSC also challenged the Tribunal’s finding that there was no sexual harassment. The Tribunal relied solely on an objective standard, whereas the inquiry requires a balanced approach that considers both objectivity and subjectivity, which includes the consideration of the position of Ms Mengo and the conduct of the Judge President.

The Tribunal further erred by treating the Judge President’s advances as cumulatively welcome, rather than assessing each incident individually. A proper assessment would have revealed that certain incidents constituted unwelcome conduct of a sexual nature. The Tribunal also failed to adequately consider the impact of power dynamics, and gave insufficient weight to the disparity in position between the Judge President and Ms Mengo.

The Commission’s finding of gross misconduct

The JSC accordingly found Judge President Mbenenge guilty of gross misconduct for pursuing a sexual relationship with Ms Mengo despite a clear power imbalance. His testimony demonstrated that he did not appreciate the responsibilities associated with his position, the power imbalance it created, and he showed remorse for his conduct.

The Commission stated that: “The conduct concerned is serious and constitutes an affront to the propriety of judicial office and the values underpinning the Constitution. It undermines core values of the Judiciary including integrity, accountability, equality, respect and dignity, and it impacts both the workplace and public confidence in the judiciary.”

Next steps

The JSC has disagreed with the Tribunal’s finding of lesser misconduct and has made a finding of gross misconduct. Judges Matter has consistently stated, from the moment the Tribunal report was released, that the Tribunal’s finding was not final and that the JSC retained the authority to substitute a different finding.

A finding of gross misconduct by the JSC triggers the impeachment process under section 177(1)(a) of the Constitution. That section provides that a judge may be removed from office only if the JSC finds the judge guilty of gross misconduct. The JSC’s findings must now be referred to the Speaker of the National Assembly. The National Assembly may then pass a resolution calling for the judge’s removal from office. If adopted by a two-thirds majority, the President is required to remove the judge from office.

The process is now in Parliament’s hands. We call on the National Assembly to treat this matter as a priority and to process the referral expeditiously. The matters involving Judge Makhubele and Judge Parker are also before Parliament

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. Addressing this requires clear standards, effective accountability mechanisms, and transparency. Strong institutions protect both the public and the judiciary itself.

Judges are entrusted with upholding dignity, equality, and freedom. When judges themselves breach the judicial code, it weakens the moral authority of the courts and the rule of law. Everyone who interacts with the courts deserves to be treated with dignity.

This finding demonstrates that the JSC takes misconduct of this nature seriously.

The judiciary plays a critical role in combatting gender-based violence in South Africa. It must therefore ensure that its own house is in order. The outcomes of these judicial misconduct proceedings send a clear signal to potential complainants, the legal profession, and the public about the seriousness with which the judiciary treats misconduct and protects its integrity.

About Judges Matter:

Judges Matter is a civil society organisation dedicated to monitoring the South African judiciary. A part of the Democratic Governance and Rights Unit at the University of Cape Town’s Law Faculty, Judges Matter conducts applied research, monitoring and advocacy on the appointment of judges, their discipline for misconduct, and how the judiciary is governed and administered.

Contact:

Alison Tilley
Judges Matter co-ordinator
alison@judgesmatter.co.za

Dimakatso Nchodu
Judges Matter Research and Advocacy Officer
dima.nchodu@uct.ac.za

Mbekezeli Benjamin
Judges Matter Research and Advocacy Officer
mbekezeli@judgesmatter.co.za

ENDS