Simon Nare
Eastern Cape High Court president Judge Selby Mbenenge could possibly be impeached and lose lifetime judge benefits after the Judicial Service Commission (JSC) overturned Judicial Conduct Tribunal findings and concluded that his actions amounted to gross misconduct.
A tribunal report handed to the commission had found that his actions as laid out in a complaint by Andiswa Mengo amounted to misconduct, but the commission, after considering the report, disagreed.
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The commission in a press statement on Thursday said it met on 5 March 2026 excluding the members designated by the National Assembly and the National Council of Provinces in terms of section 20 (1) of the Judicial Service Commission Act 9 of 1994, to consider the report.
The commission revealed that the tribunal found Mbenenge guilty of misconduct not amounting to gross misconduct and not guilty of gross misconduct, gross incompetence and/or gross incapacity under section 177 of the Constitution.
“The Commission found that on the common cause facts, the conduct of Judge President Mbenenge constitutes gross misconduct in terms of section 177(1)(a) of the Constitution,” said the commission.
It came to this conclusion after considering written submissions by both parties and the report in terms of section 20 (2) of the JSC Act.
“The Commission will accordingly submit to the Speaker of the National Assembly its finding, together with reasons and a copy of the report in accordance with section 20(4) of the JSC Act,” it said.
It added that it had invited the parties to again make written submissions on whether the commission should advise President Cyril Ramaphosa to suspend Mbenenge pending his impeachment.
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According to the Constitution, a judge can be removed if found guilty of incapacity, gross incompetence or gross misconduct and this would require a two-thirds vote in the National Assembly.
Mbenenge’s troubles commenced after Mengo, a secretary to one of the judges in the Makhanda High Court, complained that she had been sexually harassed by the judge over a period from approximately June 2021 to around November 2022.
The tribunal in its report had concluded that even though Mbenenge was not guilty of gross misconduct, he had contravened a Code of Judicial Conduct in that he initiated and subsequently conducted a flirtatious relationship with Mengo through a series of WhatsApp exchanges.
It further found that the text messages were not welcomed by Mengo.
Mbenenge in a written submission argued that since he had not been found guilty of sexual harassment, he was therefore not guilty of gross misconduct.
The JSC disagreed with his argument and found that the tribunal had limited its assessment to the conduct having taken place at work and during working hours.
“What the Tribunal should have regard to was not merely the place and timing of the exchanges, but their nature, content and context as well as the fact that they were admittedly initiated by JP Mbenenge and sustained over a period of time,” it said.