Judge's sexual misconduct case begins

A Judicial Conduct Tribunal into sexual harassment allegations against Eastern Cape Judge President Selby Mbenenge is due to begin today. It marks the first time a judge has faced potential impeachment for sexual misconduct. The tribunal will be a test of how the judiciary treats allegations of sexual harassment within its ranks. The Sunday Times reports that there is concern Mbenenge’s case has been treated differently because he was not suspended unlike other judges who faced tribunals. The tribunal’s president, retired Gauteng Judge President Bernard Ngoepe, last month ruled that the tribunal would be partially public and partially behind closed doors because the evidence had the potential to bring ‘irreparable harm’ to the judiciary. As Mbenenge was one of its leaders, ‘damage to him would extend to the judiciary’, said Ngoepe in his ruling.

The allegations, made by Andiswa Mengo, then a judge’s secretary in the Eastern Cape division of the High Court, relate to a series of WhatsApp exchanges between the two, and an alleged encounter in Mbenenge’s chambers between June 2021 and November 2022. The Sunday Times notes that Mbenenge has admitted to some of the WhatsApp messages, but claims they were consensual and simply ’playful, jovial and flirtatious’ The Judicial Conduct Committee (JCC) in 2023 noted that Mengo said Mbenenge’s attention was unwanted and made her uncomfortable. It said it was ‘common cause’ that Mbenenge ‘made sexual advances’ to Mengo. The question was whether those were unwanted, ‘and, if so, whether the Judge President knew, or ought to reasonably have known, that they were unwanted’.

The Sunday Times requested Mbenenge’s submissions to the tribunal to ascertain what he was disputing, but this was refused. However, the JCC’s decision referred to sexually explicit pictures and a video, which Mengo said Mbenenge sent to her, which he denied. The JCC was ‘not equipped to determine whether certain pictures were downloaded from the internet, as alleged by the Judge President or sent from the Judge President’s phone, as alleged by (Mengo)’. The ‘contours of sexual harassment are complex’, said the JCC. However, the extent to which the public will be privy to the tribunal’s investigation of this ‘complex’ issue remains to be seen. Ngoepe said the ‘very purpose’ of judicial conduct tribunals was ‘to protect the image of the judiciary as an institution’. But the proceedings should not be conducted in a way that, whatever the outcome, ‘damage to the institution would still ensue. This would, surely, be the result if a decision was made to hold the proceedings in public,’ he said.

Full Sunday Times report