Eastern Cape Judge President Selby Mbenenge’s future is now in the hands of the National Assembly after the Judicial Service Commission (JSC) found him guilty of gross misconduct, overturning a tribunal’s earlier finding of lesser misconduct.

The JSC announced last week, on 16 April, that it will submit its findings to the Speaker of the National Assembly, triggering a constitutional process that could lead to Mbenenge’s removal from office.

The decision stems from a complaint lodged by Andiswa Mengo, a judge’s clerk at the Makhanda High Court, against the Judge President.

Mengo alleged that she was subjected to persistent sexual harassment, including inappropriate electronic communications, by Mbenenge between 2021 and 2022.

ALSO READ: Judge President Mbenenge denies sending explicit photos to secretary

A Judicial Conduct Tribunal had previously found Mbenenge guilty of misconduct “not amounting to gross misconduct”, noting that Mengo’s active participation in some exchanges made the advances seem consensual.

The JSC rejected this finding after reviewing the tribunal’s report and written representations from both parties.

According to the JSC report, the tribunal understated the seriousness of the admitted conduct by characterising it as “a flirtatious workplace relationship.”

The JSC found that the tribunal did not apply the appropriate standard for assessing sexual harassment.

It further noted that the tribunal treated the inquiry as an objective exercise focused on whether the communications were unwelcome, rather than using a balanced approach that combined objective and subjective standards taking into account the complainant’s position and the respondent’s conduct in context.

The JSC said the tribunal failed to consider whether Mbenenge ought to have known his conduct was unacceptable given the responsibilities of his office and Mengo’s position.

The Commission said this resulted in the tribunal focusing on the complainant’s conduct without sufficient consideration of whether Mbenenge should have appreciated that his behaviour was inappropriate.

The Commission found that the tribunal failed to properly consider the power relationship between Judge President Mbenenge and Mengo.

The JSC said the tribunal approached the matter as though the parties were consenting adults on equal footing with the right to freedom of association, giving insufficient weight to the disparity in position between them.

The JSC found that Mbenenge’s conduct violated section 5.1 of the Code of Judicial Conduct, which requires judges to “always, and not only in the discharge of official duties, act honourably and in a manner befitting judicial office.”

In reaching its conclusion of gross misconduct, the Commission considered the sexual nature of communications initiated by Mbenenge, his pursuit of Mengo and his stated intention to pursue a sexual relationship with her, and the position of authority held by Mbenenge and the power imbalance between him and Mengo.

The JSC noted that Mbenenge’s testimony before the Tribunal revealed that he does not appreciate the responsibility associated with his position as Judge President and the power imbalance it creates in the work environment.

During his testimony, Mbenenge said: “This thing about class distinction during this age and era, is something that I look down upon. I do not believe that a JP when it comes to engaging in whatever relationship, they are confined to persons of the same class.”

The Commission also noted that Mbenenge showed no remorse for his conduct.

In its report, the JSC stated: “The conduct concerned is serious and constitutes an affront to the propriety of judicial office and the values underpinning the Constitution. It undermines core values of the Judiciary including integrity, accountability, equality, respect and dignity.”

The Commission also considered the impact of Mbenenge’s conduct on the workplace and on public confidence in the judiciary.

The JSC has invited parties to make written submissions on whether it should advise President Cyril Ramaphosa to suspend Judge President Mbenenge pending the parliamentary process.

Under section 177(1)(a) of the Constitution, a judge may be removed from office only if the JSC finds the judge guilty of gross misconduct.

The National Assembly must now consider the JSC’s findings and may pass a resolution calling for Mbenenge’s removal. If such a resolution is adopted by a two-thirds majority, the President is constitutionally required to remove the judge from office.

The matter joins two other judicial misconduct cases currently before Parliament involving Judge Makhubele and Judge Parker.