Eastern Cape Judge President Selby Mbenenge has turned to the courts in an effort to stop a process that could ultimately cost him his position on the bench.
Mbenenge has filed an application in the Pretoria High Court seeking to prevent the Judicial Service Commission (JSC) from forwarding its finding of gross misconduct against him to Parliament while he challenges the decision in court.
The legal challenge comes after the JSC in April concluded that Mbenenge’s conduct amounted to gross misconduct following allegations of sexual harassment made by his former secretary, Andiswa Mengo.
Mengo accused the senior judge of engaging in inappropriate conduct, including sexually suggestive WhatsApp communications between 2021 and 2022, as well as unwanted physical advances.
The allegations were investigated by a Judicial Conduct Tribunal headed by former Gauteng Judge President Bernard Ngoepe, together with Judge Cynthia Pretorius and advocate Gift Mashaba.
The tribunal found that Mbenenge’s behaviour was inconsistent with the standards expected of judges and that he had breached the Code of Judicial Conduct by failing to act honourably. However, it stopped short of finding him guilty of gross misconduct.
The JSC later rejected that conclusion and ruled that the conduct was serious enough to qualify as gross misconduct, paving the way for possible impeachment proceedings in Parliament.
If the matter reaches the National Assembly and gains the support of at least two-thirds of MPs, Mbenenge could be removed from office and stripped of the benefits that accompany his judicial position.
In papers filed before the High Court, Mbenenge argues that the JSC’s decision was flawed and should be overturned.
He contends that the commission acted unlawfully and reached a conclusion that was irrational and unsupported by the evidence placed before it.
According to Mbenenge, the JSC’s ruling was tainted by factual and legal errors and failed to meet the standards of fairness required by law.
He is also contesting the tribunal’s finding that he breached the judicial code, saying that issue was never properly raised during the disciplinary proceedings.
Mbenenge argues that he was not informed that he could be found guilty of violating the code and therefore had no opportunity to prepare a defence against that specific allegation.
While challenging that aspect of the tribunal’s ruling, he maintains that its decision to clear him of gross misconduct was correct and supported by the evidence presented during the hearings.
The judge president is now asking the court to stop the JSC from sending its recommendation to Parliament until his review application has been fully heard and decided.
He says the commission has not provided any assurance that it will delay referring the matter to the National Assembly while the legal challenge is underway.
According to Mbenenge, that creates the possibility that Parliament could begin impeachment proceedings before a court has determined whether the JSC acted lawfully.
He argues that such a development would cause him serious prejudice and could render the review proceedings meaningless.
The outcome of the case is expected to have significant implications for judicial accountability and could determine whether Parliament may proceed with considering the removal of a judge while the underlying disciplinary findings remain the subject of a court challenge.
