[UPDATE] Statements On Complaint Against Eastern Cape High Court Judge President Mbenenge

Following the Judicial Service Commission’s announcement of its decision not to recommend the suspend Eastern Cape High Court Judge President Selby Mbenenge, Judges Matter issued the statement below.
The JSC statement follows below.

JUDGES MATTER EXPRESSES DEEP CONCERN AT JSC’S DECISION NOT TO SUSPEND JUDGE ACCUSED OF SEXUAL HARASSMENT

The Judicial Service Commission’s inconsistent treatment of judges accused of gross judicial misconduct risks undermining the judiciary, harming the investigation and discourages victims.

Judges Matter expresses its deep concern at the Judicial Service Commission’s announcement today (15 February 2024) that it will not be recommending that Judge Selby Mbenenge, the Judge President of the Eastern Cape High Court, be placed on suspension pending a sexual harassment investigation against him. The JSC’s reason is that the judge is already on special leave.

Judges Matter believes that the JSC’s decision not to recommend suspension pending a tribunal investigation is inconsistent and unfair. It risks undermining the judiciary and victims of sexual and gender-based violence.

We say so for the following reasons:

Since the amendment of the JSC Act in 2010, the JSC has consistently recommended that judges accused of gross judicial misconduct be placed on suspension pending a judicial conduct tribunal investigation against them. There are at least 5 judges currently on suspension for various acts of misconduct: Judge John Hlophe, Judge Tintswalo Nana Makhubele, Judge Mushtak Parker, Judge Tshifiwa Maumela, and Judge Nomonde Mnqibisa-Thusi.

Like Mbenenge, all the judges who have been placed on suspension were required to finalise part-heard cases and deliver all judgments. The JSC does not explain in its statement why mandatory suspension was deemed appropriate for other judges but voluntary special leave is appropriate for Judge Mbenenge.

The complaint against Judge Mbenenge is extremely serious and will no doubt need thorough investigation. The JSC appears to be giving him special, more favourable treatment. This risks undermining the investigation, and the findings of the JSC. We believe it will also send a negative, discouraging message to victims of sexual harassment. The JSC must explain if it considered these impacts of its decision.

Alison Tilley, co-ordinator of Judges Matter says:
“We raise these concerns within the wider context of a pervasive culture of sexual harassment in the legal profession and in  South African society. It is troubling that the JSC has decided to act inconsistently in this case involving one of the most senior judges in South Africa, and in a case involving allegations of this nature. We are concerned about the  chilling effect of the JSC’s decisions on potential victims coming forward. Judges Matter calls on the JSC to explain the rationale behind its decision not to suspend Judge Mbenenge.”

DOWNLOAD JUDGES MATTER STATEMENT HERE

JSC MEDIA STATEMENT:

15 February 2024

Following its decision on 6 December 2023 to recommend to the Chief Justice that the complaints of Ms A Mengo against Eastern Cape Division Judge President Selby Mbenenge be referred to a Tribunal for investigation, the Judicial Service Commission (JSC), constituted without members designated by the National Assembly and National Council of Provinces in terms of section 178(1)(h) and (i) of the Constitution, invited the parties to make submissions whether or not the JSC should advise the President in terms of section 177(3) of the Constitution of the Republic of South Africa that it is desirable that the President place Judge President Mbenenge on suspension pending the conclusion of the investigation of the complaints by a Tribunal to be constituted by the Chief Justice.

After considering the submissions of the parties, the JSC without the members designated in terms of section 178(1)(h) and (i) of the Constitution, decided on 2 February 2024 that the President be advised that it is not desirable that the President suspend Judge President Mbenenge. The reason for the decision of the JSC is that Judge President Mbenenge is on special leave pending the outcome of the Tribunal and in this period is required to finalise all partly-heard matters. Ends.

Enquiries: Adv Baloyi SC: 0836315741 and Mr M Notyesi: 072 334 9357

Issued by the Judicial Service Commission
15 February 2024

DOWNLOAD PRESS RELEASE HERE

BACKGROUND NOTES:

– On 19 February 2023 the Sunday Times reported that Ms AM (an official employed at the Makhanda High Court)
filed a complaint of sexual harassment against Eastern Cape Judge President Selby Mbenenge.
– On 21 February 2023 Judges Matter issued a statement calling on Judge Mbenenge to step down pending further processing of the complaint against him. He refused.
– The Chief Justice classified the complaint as one of gross judicial misconduct and referred it to the Judicial Conduct Committee.
– On 14 September 2023 a panel of 3 judges of the Judicial Conduct Committee heard submissions from both the complainant and Judge Mbenenge and ruled that there was a prima facie case of gross judicial misconduct which, if confirmed, will lead to his impeachment. Simultaneously, the JCC recommended that the JSC appoint a Judicial Conduct Tribunal to probe the matter further.
– 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 Judge Mbenenge. At the same time, the JSC requested both the complainant and Judge Mbenenge to put forward reasons why Judge Mbenenge should not be placed on suspension.
– On 2 February 2024 the JSC decided that it was not desirable to advise the president to place Judge Mbenenge on suspension as he was already on special leave.

About Judges Matter:

Judges Matter is a civil society project dedicated to monitoring the South African judiciary to ensure transparency and accountability. Based at the Democratic Governance and Rights Unit at the UCT Law Faculty, Judges Matter conducts applied research and advocacy to monitor the appointment of judges and magistrates, their discipline for misconduct, and how the judiciary is governed and administered. More information is available on www.judgesmatter.co.za and on Twitter: @WhyJudgesMatter.