Mbenenge seeks to block impeachment over sexual harassment ruling

Eastern Cape judge president Selby Mbenenge is seeking a court order interdicting the Judicial Service Commission (JSC) from referring its gross misconduct finding against him, in a sexual harassment complaint, to the National Assembly.

Mbenenge has approached the high court in Pretoria to halt parliament’s impeachment consideration process. He faces the risk of losing his judicial title and lifetime salary benefits if two-thirds of the National Assembly vote to impeach him.

The review application is based on the grounds of errors of law against the JSC and the Judicial Conduct Tribunal (JCT), chaired by former Gauteng judge president Bernard Ngoepe and fellow panel members judge Cynthia Pretorius and advocate Gift Mashaba.

Complaint

In January, the JCT, which investigated the sexual harassment complaint, found Mbenenge was not guilty of gross misconduct. It found he breached the code of judicial conduct provision, which states a judge must always act honourably.

The sexual harassment complaint was made against him by the judge’s secretary, Andiswa Mengo. She accused the judge president of sexually harassing her in their engagements on WhatsApp from June 2021 to 2022 and physically as well.

In April, the JSC did not accept the findings of the tribunal and found that Mbenenge’s conduct constituted gross misconduct, which is grounds in the constitution for the removal of a judge.

‘Procedurally unfair’

Mbenenge wants to review the findings of the tribunal and the commission.

“The JSC’s decision is procedurally unfair, substantively irrational, materially influenced by errors of fact and law, unreasonable and offends the principle of legality. It accordingly falls to be reviewed and set aside,” he argues.

Mbenenge is also challenging the tribunal’s finding that he breached the code of judicial conduct. He argues he was not confronted with the alleged contravention during the tribunal’s probe.

“Accordingly, I was neither offered any opportunity to prepare a defence against such contravention,” Mbenenge contends.

“In respect of the finding of not guilty of gross misconduct and/or gross incompetence and/or gross incapacity, I regard the decision as correct and based on the evidence before the JCT.”

Findings

Mbenenge wants to interdict the JSC from referring its finding to the National Assembly, which would trigger the impeachment processes. He contends that the JSC has not given an undertaking that it will not refer a recommendation for his removal to the National Assembly pending the outcome of the review application.

The JSC previously indicated it would submit its finding of gross misconduct to the speaker of the National Assembly.

“In the absence of such undertakings, there is a real and imminent risk that the recommendation of the JSC will be referred to parliament and that impeachment proceedings will commence, which would irreparably prejudice me and render this review academic.”