By Lehlohonolo Lehana.
Eastern Cape Judge President, Selby Mbenenge escaped impeachment as the Judicial Conduct Tribunal finds that he is not guilty of gross misconduct.
The junior court clerk accused Mbenenge of sexual harassment and “flirted” with him in “deeply sexual WhatsApp conversations”.
The complainant, Andiswa Mengo, contended that the attention she received from Mbenenge was unwanted.
The complaint, initially lodged with the Office of the Chief Justice (OCJ) and later reviewed by the Judicial Complaint Committee (JCC), alleged sexual harassment by Mbenenge.
The JCC, on September 14, 2023, recommended a full investigation by a Tribunal, citing a prima facie case that, if substantiated, could lead to a finding of gross misconduct.
The Tribunal, comprising Retired Judge President B.M. Ngoepe, Retired Judge C. Pretorius, and Adv. M.G. Mashaba SC conducted a new hearing, including the testing of parties’ versions through cross-examination and expert evidence.
A tribunal ruled that his actions including a flirtatious relationship with a court secretary, violated the judicial code of conduct, but were not serious enough to justify impeachment.
Mengo has been found to have given false testimony.
While the Tribunal found no evidence of gross misconduct, gross incompetence, or gross incapacity, it did determine that Mbenenge was guilty of misconduct not amounting to gross misconduct, specifically for contravening Article 5.1 of the Code of Judicial Conduct.
Article 5.1 of the Code of Judicial Conduct, states: “A judge must always, and not only in the discharge of official duties, act honourably and in a manner befitting judicial office.”
The Tribunal found that Mbenenge’s conduct amounted to misconduct because he initiated and subsequently conducted a flirtatious relationship with Mengo at a place of work and during working hours.
This was deemed “prejudicial to the effective and expeditious administration of business of the court,” contravening Article 5.1 read with Note 5(iii) thereto. The report will be submitted to the judicial services commission for a final decision on a sanction.