Des Erasmus
Eastern Cape Judge President Selby Mbenenge has filed an urgent court application to stop the Judicial Service Commission (JSC) from advancing a gross misconduct finding that could trigger impeachment proceedings against him.
In papers filed in the Gauteng High Court in Pretoria, Mbenenge is seeking an interim interdict restraining the JSC from referring its finding to the Speaker of the National Assembly and stopping President Cyril Ramaphosa from acting on any suspension process, pending a review.
The matter stems from a sexual harassment complaint filed in 2023 by Andiswa Mengo, a secretary to a judge in the Makhanda High Court, who alleged that Mbenenge sexually harassed her between about June 2021 and November 2022.
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After substantial hearings, which included airing of the text messages between the judge and the secretary, the Judicial Conduct Tribunal (JCT) found that no sexual harassment had taken place, but said Mbenenge had contravened Article 5.1 of the Code of Judicial Conduct by initiating and conducting a “flirtatious relationship” with Mengo at work and during working hours. While this was not gross misconduct, it said, it was misconduct.
But the JSC it did not endorse the tribunal’s findings that there had been no sexual harassment. It said the tribunal had failed to properly assess the nature, context and power imbalance in the exchanges between the Judge and Mengo. It said Mbenenge’s actions amounted to gross misconduct – which can trigger a section 177 impeachment process.
Said Mbenenge in his founding affidavit for the application: “The JCT’s finding of misconduct simpliciter under article 5.1 of the Code was made in breach of the audi alteram partem principle; was beyond its terms of reference; was arbitrary and procedurally unfair; and was not rationally connected to the information and evidence before it.”
He said the JSC’s gross misconduct finding “depended on the JCT’s flawed article 5.1 findings without proper justification, was made without notice to me of the case I had to meet, mischaracterised the JCT’s reasoning on the issues of power relations, the ‘ought to have known’ standard, the cumulative versus individual assessment of exchanges, and the appropriate sexual-harassment test; and was substantively irrational, unreasonable, unconstitutional and unlawful”.
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He has asked the court, in Part A of his application, for interim relief preventing the JSC from referring its finding to Parliament and preventing the President from acting under sections 177(2) or 177(3) of the Constitution.
In Part B, he seeks the review and setting aside of the JSC and tribunal decisions, along with costs against any respondent that opposes the application, including the costs of three counsel where employed.
The respondents are the JSC, JCT, Speaker of the National Assembly, the National Assembly, the President and Mengo.
The JSC said in April it would submit its finding, reasons and a copy of the tribunal report to the Speaker, and it invited submissions on whether it should advise the President, under section 177(3) of the Constitution, to suspend Mbenenge pending the section 177 process.
