Public to hear it all at Eastern Cape Judge President Selby Mbenenge tribunal.

By Lehlohonolo Lehana.

The Judicial Conduct Tribunal probing sexual harassment allegations against the Judge president of the Eastern Cape Division of the High Court, Judge Selby Mbenenge will be heard in public, the president of the tribunal, retired Gauteng Judge President Bernard Ngoepe ruled at the start of proceedings today (Monday).

Ngoepe had previously ruled that the tribunal would proceed on a hybrid basis, partially in public, and partially in camera, finding that a fully public hearing would cause irreparable damage to Mbenenge, and the judiciary as an institution. He said then that damaging the image of the judiciary in that way could not be in the public interest.

The allegations stem from sexual advances made by the senior judge between 2021 and 2022 towards Andiswa Mengo, a secretary in the Division of the High Court at the time.

Mengo filed the complaint against her superior, stating that the suggestive advances  he made were unwelcome.

However, the judge, who has since been placed on special leave, argue the interactions were consensual.

It’s expected that some of the details surrounding the allegations of inappropriate WhatsApp messages will be fully fleshed out.

Mengo, also alleges the Judge President attempted to expose himself to her in his chamber – claim Mbenenge denies.

When media queries were submitted on the complaint in February 2023, the judge president issued a fruitless “desist” demand through an East London firm of attorneys to ward off media publication of the allegations.

He has opposed a public hearing of the tribunal’s proceedings until today, but through his counsel Muzi Sikhakhane SC, told the tribunal he had changed his position and now wanted a public hearing.

Ngoepe heard Sikhakhane’s submission in chambers and called Chief Justice Mandisa Maya to consult with her, a requirement of the Judicial Services Commission Act on whether or not tribunal proceedings must be heard in camera – the default position – or in public.

Mbenenge is the first judge in South Africa to face allegations of sexual harassment.

Then chief justice Raymond Zondo, in an initial assessment, did not find that the complaint was frivolous or lacked substance, referring it to the Judicial Conduct Committee, a sub-committee of the Judicial Service Commission.

In a September 2023 ruling, the JCC found that the complaint established a prima facie case which, if substantiated, was likely to result in a finding of gross misconduct against Mbenenge.

It recommended to the JSC that a tribunal should be appointed to investigate and report on the complaint, with Zondo appointing Ngoepe to lead it.

The judge president has been on special leave since 2023. The decision by Zondo to grant the leave was used by the JSC as the basis for its decision not to advise President Cyril Ramaphosa to suspend Mbenenge pending the outcome of the tribunal proceedings.

Ngoepe highlighted the special leave dispensation granted to Mbenenge in his original ruling on the hybrid hearing as “a clear message” to show that appropriate steps would be taken to show that a sexual harassment complaint would be investigated.

While Ngoepe noted that an in camera JCT hearing was the default position spelled out in the Judicial Service Commission Act, many tribunals have proceeded in the full glare of the public and media.

The complaint against Mbenenge will be assessed outside of the ambit of the judiciary’s sexual harassment policy, which was only signed off by Zondo a day before he retired at the end of August 2024.

Chief Justice Mandisa Maya famously raised the absence of a sexual harassment policy for the judiciary in an interview before the JSC in 2021.

But she has also said that the 2012 Code of Judicial Conduct covers behaviour by a judge which could amount to sexual harassment. That code enjoins a judge to act honourably, comply with SA law, and to avoid impropriety and conduct that may prejudice the court system.

The JSC is also working towards having in place an interim policy which would allow it to recommend suspension of a judge while a complaint is still at an early stage of assessment.

The tribunal will sit for two weeks, with parts of the hearing held in camera. At the of the sitting, the tribunal will submit a report to the judicial Service Commission (JSC).

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