From now on, following a Judicial Conduct Tribunal finding that Eastern Cape judge president Selby Mbenenge is not guilty of gross misconduct but has fallen short of standards expected of a member of the judiciary, the judiciary’s standing has become higher and its opportunities greater.
The field lies open, in ways it does only after the appointment of new leadership, for a decisive implementation of the Code of Judicial Conduct and the August 2025 Sexual Harassment Policy for the South African judiciary.
One of the most trenchant sections of the 169-page findings of the tribunal, chaired by retired judge Bernard Ngoepe, states that Mbenenge’s conduct concerning court secretary Andiswa Mengo “fell short of the standards expected of a judicial officer”.
Mbenenge was found guilty of contravening Article 5.1 of the Code of Judicial Conduct, which mandates that a judge should always act “honourably and in a manner befitting judicial office”.
The fact that Mbenenge had initiated and conducted a “flirtatious relationship” with Mengo at her place of work and during work hours was also dishonourable, the tribunal found.
It also found that Mengo omitted from her original complaint flirtatious and sexually suggestive messages she had sent the judge president.
What is more, she could not prove an alleged in-person incident at the courthouse involving inappropriate behaviour on the part of Mbenenge.
Those findings, the tribunal said, undermined her claim that she was an unwilling participant in the exchanges.
Now that the tribunal’s findings are out, all South Africans have more reasons to work together to transform the judiciary and society, and we must seize the opportunity.
In the past, several opportunities to make radical change to SA’s judiciary and society at large have largely been squandered.
As a result, the work of rebuilding confidence has become harder than ever, as the continuing rise of sexual harassment and gender-based violence cases makes clear.
The judiciary leadership has already undertaken “safeguarding the integrity of the courts and protecting the dignity of all who serve within them” by launching the policy in August 2025.
According to chief justice Mandisa Maya, “Sexual harassment is a gross abuse of power, a denial of equality, and a stain on the legitimacy of the courts.
“We are going to tackle it head-on and this policy will be a mechanism in that battle.”
A decisive enforcement of the Code of Judicial Conduct and the Sexual Harassment Policy institutional promises should ride on a tide of continuous judicial appointments that reflect commitment to reform and goodwill.
As such, citizens should not lose momentum just because of lapses, freebie furore and wider past policy failures.
The key policy principles call for collective action to achieve four objectives.
These are zero tolerance for sexual harassment by or against any judicial officer, staff member, or individual engaging with the judiciary; clear, confidential, and fair procedures for reporting and addressing complaints, with protections against retaliation; accountability, with disciplinary consequences for offenders and; a safe and respectful workplace, free from discrimination and intimidation.
While the tribunal acknowledged the professional hierarchy of the environment — Mbenenge as judge president and Mengo as court secretary — it found this power imbalance did not “automatically equate to coercion or sexual harassment”.
It is false to claim, as some social media commentators did after the release of the findings, that there is no need for the ensuing critical debate in human rights circles on the fact that Mbenenge escapes gross misconduct charges, but faces criticism from a Judicial Conduct Tribunal, highlighting a concerning gap between judicial conduct standards and expectations within SA’s legal system.
The tribunal’s rejection of the “power differential” concept in its not guilty verdict has raised concerns in some quarters that victims of harassment may now be discouraged from coming forward.
For some, what sexual harassment looks like in the workplace and whether the tribunal is correct in finding that power differential did not play a role here remains debatable.
The debate is not an attempt to bury bad news.
The process is not yet concluded, as the report is now with the Judicial Service Commission, mandated to consider it and make a final determination.
The statement by the chief justice at the time of launching the policy is fine as far as it underpins policy as a “necessary and urgent intervention” and that “the judiciary cannot dispense justice to society if it does not first ensure it within its own ranks”.
There is room to listen to every voice of reason, including those who have so often trashed the existing standards regimes in recent years.
But those who played a role in suppressing charges against Mbenenge or in manipulating Mengo’s claims to result in a negative finding against her should be ashamed.
Ultimately, both are responsible for their overall conduct.
The judiciary should not have left things unaddressed for so long, making the public lose the impetus for reform and rebuilding trust.
Uncertainty over whether the judiciary will in the future act on allegations of sexual harassment, or protect complainants, has been resolved.
It will do so even more forcefully using the policy in place.
As a tidying-up exercise, this all makes sense that we should be forward-looking and optimistic.
It serves no purpose to lament that by delaying the adoption of a sexual harassment policy, the country has missed a golden chance to reform the judiciary’s ethics in a watertight way.
It is reasonable to expect that a senior judge should be impeached if found guilty of gross misconduct.
But what if that expectation is not fulfilled because of a lack of evidence to support allegations?
Or if the conduct complained of falls short of a serious violation of a code of conduct or policy?
Nothing suggests in this case that the disciplinary system and process are toothless.
Cleaning up the judiciary and our society is not an optional priority. It is a compulsory one. These steps do go far enough.
They suggest strong efforts to promote, through effective instruments, what the chief justice called “a covenant with the people of SA to lead by example,” led from the top, and of the rigorous kind required.
That is indeed what the country needs. And there is enough will here to shift that dial.
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