By Lehlohonolo Lehana.
The Judicial Service Commission (JSC) has unanimously resolved to advise President Cyril Ramaphosa to suspend Eastern Cape Judge President Selby Mbenenge.
The JSC, which met earlier this month to consider the matter, said that the advised suspension would be in place until the National Assembly votes on his possible impeachment over sexual harassment findings.
In January, the Judicial Conduct Tribunal, which investigated the sexual harassment complaint against Mbenenge, found him 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 complainant Andiswa Mengo, a secretary at the Makhanda High Court, including that she was untruthful on key aspects of her complaint.
The complaint stems from allegations by Mengo, that Mbenenge sexually harassed her between June 2021 and November 2022.
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 were 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.
Mbenenge has since filed a review application to interdict the JSC from referring the gross misconduct finding against him to the National Assembly.
The JSC on Monday, 27 January 2026, announced the decision that the president must suspend Mbenenge.
“It said that on July 7, 2026, the commission, excluding members designated by National Assembly and the National Council of Provinces, met in terms of Section 20(1) of the Judicial Service Commission Act 9 of 1994 to consider written submissions on whether it should advise Ramaphosa to suspend Mbenenge under Section 177(3) of the Constitution.”
“At this meeting, the JSC resolved to advise the President to suspend Judge President Mbenenge from his duties pending the decision of the National Assembly as contemplated in Section 177 of the Constitution,” the statement said.
In the review application, Mbenenge asks the court to set aside the JSC’s decision rejecting the tribunal’s finding that he was not guilty of gross misconduct. Alternatively, he seeks an order declaring the decision unlawful, unconstitutional and invalid.