By Lehlohonolo Lehana.
The Eastern Cape Judge President Selby Mbenenge has filed a review application to interdict the Judicial Service Commission (JSC) from referring the gross misconduct finding against him to the National Assembly.
The move seeks to halt any potential parliamentary action while he pursues a formal legal review of the JSC’s decision.
He is accused of making unwanted sexual advances towards junior employee, Andiswa Mengo between 2021 and 2022.
In January, the Judicial Conduct Tribunal, which investigated the sexual harassment complainant, found Mbenenge guilty of a degree of misconduct, but not gross misconduct.
Meaning he is not liable for removal from office through impeachment. The tribunal did find him guilty of Category B misconduct, which is still serious and attracts sanctions under section 17(8) of the Judicial Service Commission Act.
A finding short of impeachment is not an acquittal in the ordinary sense, nor does it imply that the conduct was trivial or incorrect.
The Tribunal made strong credibility findings against Mengo, including that she was untruthful on key aspects of her complaint.
However, the JSC did not accept the findings of the tribunal and on 5 March, found that Mbenenge was guilty of gross misconduct. It then recommended that Mbenenge be removed from office.
The JSC’s findings must now be referred to the Speaker of the National Assembly. The National Assembly may then pass a resolution calling for the judge’s removal from office. If adopted by a two-thirds majority, the President is required to remove the judge from office.
He stands to lose his judicial title and salary benefits if impeached. He argues the JSC’s finding is fundamentally flawed.
In his court papers, Mbenenge argues errors in law, procedurally irregular actions by the JSC, and the Commission’s failure to accept the Judicial Conduct Tribunal’s (JCT) initial findings.
Part A of his court application, Mbenenge asks the court to hear the matter on an expedited basis and to prevent the JSC from implementing its decisions. He further seeks an order preventing any impeachment proceedings from moving forward while the review application is pending.
The application also seeks to interdict Parliament and the President from acting on the JSC’s findings, including any steps to remove him from office or suspend him as Judge President of the Eastern Cape Division of the High Court.
Part B of the application, Mbenenge asks the court to review and set aside the JSC’s decision rejecting the tribunal’s finding that he was not guilty of gross misconduct. Alternatively, he seeks to have the decision declared unlawful, unconstitutional and invalid.
The case could have significant implications for the judiciary.
Should Mbenenge succeed in obtaining interim relief, the impeachment and suspension processes recommended by the JSC could be placed on hold pending the outcome of the review proceedings.