Judge President Selby Mbenenge has been found guilty of gross misconduct by the Judicial Service Commission following a complaint by Andiswa Mengo..
Image: Office of the Chief Justice / N Mabusela
Embattled Eastern Cape Judge President Selby Mbenenge is facing possible impeachment after the Judicial Service Commission (JSC) found him of guilty of gross misconduct, sharply criticising both his conduct and the earlier findings by the Judicial Conduct Tribunal (JCT) which absolved him from any wrongdoing.
In a report released on Thursday, the JSC concluded that Mbenenge’s actions, including pursuing a relationship with a junior court employee, Andiswa Mengo, were “grossly inappropriate” and incompatible with judicial office.
The complaint stems from allegations by Mengo, a secretary at the Makhanda High Court, that she was sexually harassed by Mbenenge between June 2021 and November 2022.
While the JCT had earlier found that Mbenenge was not guilty of gross misconduct and that the relationship was consensual, the JSC rejected that conclusion, finding serious flaws in the tribunal’s reasoning.
“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,” read the report.
The JSC said the tribunal narrowed its focus incorrectly by treating the matter primarily as a “flirtatious relationship” in the workplace.
“What the Tribunal should have had regard to was not merely the place and timing of the exchanges, but their nature, content and context,” the Commission said, adding that the conduct extended beyond working hours and “bore directly on the standard of conduct expected of a Judge”.
It further found that the tribunal “understated the significance of the admitted conduct and failed to properly assess the extent” to which judicial ethics were breached.
The commission was unequivocal in its assessment of Mbenenge’s behaviour.
“The view of the JSC is that such conduct is grossly inappropriate for a person holding the position of Judge (let alone a Judge President). It is conduct incompatible with the standard of honourable behaviour and propriety required of judicial office.”
It confirmed that Mbenenge had contravened the Code of Judicial Conduct, which requires that “a judge must always act honourably and in a manner befitting judicial office.
Significantly, the JSC also distanced itself from the tribunal’s finding that no sexual harassment had occurred.
“The JSC does not endorse the finding by the tribunal that there was no sexual harassment,” the report states.
It said the tribunal failed to apply the correct legal test, instead focusing too heavily on whether the communication was “unwelcome” without properly considering the broader context, including Mengo’s position and Mbenenge’s authority.
The commission added that the tribunal “failed to properly consider the impact of the relationship of power between JP Mbenenge and the complainant,” criticising its approach that treated the pair as “consenting adults on an equal footing”.
In concluding that the conduct amounted to gross misconduct, the JSC pointed to several aggravating factors, including “the sexual nature of the communications”, Mbenenge’s “pursuit” of Mengo, and the “imbalance of power” between them.
It also raised concerns about his attitude during proceedings, noting that his testimony “revealed that he does not appreciate the responsibility associated with his position as Judge President”.
The commission further found that “Mbenenge showed no remorse for his conduct”.
The JSC said the matter went beyond personal conduct, warning that it undermined public confidence in the judiciary.
“The conduct concerned is serious and constitutes an affront to the propriety of judicial office and the values underpinning the Constitution,” it said, adding that it “undermines core values of the Judiciary including integrity, accountability, equality, respect and dignity.”
Meanwhile, in a formal letter to Mbenenge’s legal representatives, KMNS Attorneys, the Judicial Conduct Committee confirmed that the finding was reached “by a majority decision” of the Commission sitting without members of Parliament.
The letter by Acting Secretary Adv. N Phakola, states that “the admitted facts during the Tribunal establishes gross misconduct rather than misconduct simpliciter.”
It further invites Mbenenge to respond on the question of a possible suspension.
“You are invited to make written submissions whether, pending the process in terms of section 177(1) of the Constitution, the Commission should advise the President to suspend Judge President Mbenenge pending the process.”
The commission has set a deadline of May 22, 2026, for submissions, which will be considered at a future meeting.
The finding now sets the stage for possible impeachment proceedings in Parliament under Section 177 of the Constitution, which could ultimately lead to Mbenenge’s removal from office.
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