Judge Mbenenge's return sparks legal showdown after sexual harassment misconduct ruling

A significant legal battle is on the horizon as Andiswa Mengo, the sexual harassment complainant, gears up to contest the Judicial Conduct Tribunal's contentious findings regarding Eastern Cape High Court Judge President Selby Mbenenge.

Although the tribunal cleared Mbenenge of gross misconduct, it found him guilty of a lesser charge of misconduct. Tensions have escalated amid reports that the judge intends to return to the bench before the Judicial Service Commission delivers its final ruling, despite growing calls for Chief Justice Mandisa Maya to intervene.

Recently, the tribunal confirmed in its report that JP Mbenenge is not guilty of gross misconduct while he was found guilty of a degree of misconduct due to his flirtatious relationship with Mengo. 

The report found that the “flirtatious – others very salacious” exchange of WhatsApp messages between Mengo and JP Mbenenge was flirtation between two adults and this was consensual.

The JCT panel - which was made up of retired Gauteng High Court Judge President Bernard Ngoepe as the Tribunal chairperson, and retired Judge Cynthia Pretorius and Advocate Gift Mashaba SC - said that the omission of “flirtatious and salacious messages that she herself had written and sent” to JP Mbenenge did immeasurable harm to her case. 

Women’s Legal Centre (WLC) spokesperson, Moenieba Abrahams, said they are aware of JP Mbenenge’s intention of resuming duties ahead of the JSC outcome but are currently working on a submission in review.

About their client Mengo, Abrahams said “it’s a lot for her to process”. 

“We are giving her time and support to process everything that is happening. When it (the report) came out, we asked her to not go online. We need to ensure she understands what her rights are now and what is available to her,” said Abrahams. 

Abrahams confirmed Mengo is still employed at the Eastern Cape Division of the High Court of South Africa.

In a media statement in response to the findings of the report, the WLC said Mengo required time to process “the outcome and deeply disappointing language used in parts of the report”. 

WLC said that the report’s finding that JP Mbenenge was guilty of misconduct, affirmed that the conduct complained about was “not without merit”.  

“This case remains critically important. The report itself illustrates the prejudice, stigma, and scrutiny faced by women who speak out about sexual harassment, especially where power imbalances exist,” WLC said.

Public commentary on the matter has noted that the JSC’s actions in this complaint will set a precedent for other similar complaints of sexual harassment by members of the judiciary. This will in turn have a domino effect on how complainants view and interact with the justice system – and whether there is justice at all.

When the Tribunal was established, JP Mbenenge offered to take special leave until the disciplinary process was complete.

According to Judges Matter, since the report was made public, Judge Mbenenge has indicated that he intends to return to work immediately. 

Judges Matter said: “That position is difficult to reconcile with the law and practice. The Tribunal’s report is not the final decision. The disciplinary process is incomplete until the JSC has considered the report and made its own determination. This is in terms of Section 19(2) read with Section 20 of the JSC Act. Therefore, there’s still a long way before the judge is cleared to go to work.”

The process will now call for written submissions from both JP Mbenenge and Mengo. In their submissions, they will argue for and/or against the tribunal ruling, including on the question of guilt and that of sanctions.

Enquiries to the Office of Chief Justice (OCJ) probing whether JP Mbenenge would be resuming duties and by when he is expected back in office, were acknowledged but had not been responded to by deadline.

Social justice activist, theologian and political analyst, Dr Clyde Ramalaine, noted that in the absence of a formal suspension and the conclusion of the disciplinary process, JP Mbenenge no longer faces court and essentially could now resume duties. 

“He is not before any court as no court has found a case that was brought against him. There is a huge outcry in feminist groups that feels that the judgment was wrong but none of them are prepared to look at these issues. 

“There is an expectation now that he needs to leave instead of coming back. The troublesome aspect is that right now, which I can’t divulge further, is that he must vacate today (Wednesday). One cannot do that. One needs to ask, why would the Chief Justice (Mandisa Maya) be that invested in this case, to this level, where it seems she has no regard for the tribunal; no regard for law itself and where does that leave us?”

Ramalaine further said in a penned piece: “While power differentials inform context, they do not automatically convert flirtation into misconduct. Harassment, under law, requires demonstrable unwelcome sexual conduct, not mere proximity to authority.

“The Tribunal correctly distinguished between authority and actionable abuse of power. To presume misconduct based solely on rank erodes the principle of objective legal assessment, substituting moral judgment for evidence-based adjudication...Acknowledging the relevance, but not determinative effect, of hierarchy highlights why tribunals must balance rigorous legal assessment with cautious consideration of precedent.”

*This is a developing story

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