A judge sent his secretary sexually explicit messages for years and called it flirtation. A tribunal accepted that explanation. It took a second body, months later, to say otherwise. Now ask yourself how many university lecturers are running the same script, with far less scrutiny than a judge ever gets.
That judge is Eastern Cape Judge President Selby Mbenenge.
The Judicial Service Commission overturned the tribunal’s finding, declared him guilty of gross misconduct, and has now recommended his suspension while the National Assembly considers impeachment.
Mbenenge is fighting all of it in the North Gauteng High Court, seeking to have both findings set aside.
The matter is far from over, and the Women’s Legal Centre has already called the JSC’s decision a ‘historic precedent’ for gender justice.
The public conversation has stayed fixed on what this means for the judiciary. It hasn’t asked the more uncomfortable question: the Mbenenge case is a blueprint for how power operates in every hierarchical institution in SA, including our institutions of higher learning, and by treating it as a problem unique to judges, we miss the chance to confront the same dynamics playing out between staff and students in our own lecture halls.
Mbenenge admitted to sending the messages but framed the relationship as consensual; the tribunal initially accepted that framing, calling it a ‘flirtatious relationship’ rather than harassment.
The JSC overturned that finding on gross misconduct, not on any legal theory of consent, but its ruling forces a question the tribunal never asked: can consent exist at all in a relationship this unequal?
This is disturbingly familiar to anyone who has worked inside the South African higher education system. The ‘grey areas’ of staff-student relationships play out constantly. When a professor sends late-night messages to a postgraduate student, or a lecturer offers ‘special mentorship’ to an undergraduate, the institution shrugs and asks: was it consensual?
Just as the tribunal initially failed to see that a secretary cannot truly say no to the head of the court without fearing for her livelihood, institutions of higher learning often fail to see that a student cannot truly say no to the person who controls their grades, their funding, and their references.
A student agreeing to dinner with a supervisor is not the same as two peers agreeing to a date. One holds the keys to the other’s degree.
Power like this rarely needs a threat to work. It operates through dependence. A student depends on a supervisor for funding, publication opportunities, references, and a future job.
The parallels between the judiciary and the academy are structural, not just anecdotal.
In the judiciary, the Judge President controls case assignments, career progression, and the professional reputation of secretaries and clerks. In institutions of higher learning, the professor controls thesis approval, the recommendation letter, and access to research networks. For a postgraduate student, a supervisor’s displeasure can end an academic career before it starts.
We have codes of conduct, just as the judiciary has its Code of Judicial Conduct. But as this case has shown, codes are useless if the culture around them protects the powerful by default.
The same is true here: the Department of Higher Education and Training’s own Policy Framework to Address Gender-Based Violence in the Post-School Education and Training System already names unequal power relations as a driver of harassment and abuse and calls on institutions to address them. The problem was never a missing policy. It is enforcement.
The inquiry has already dragged on for years. Mbenenge remained in his post, drawing a salary and retaining his status, while secretary Andiswa Mengo had to relive the trauma publicly. Even now, after a guilty finding, he is still in court fighting the consequences, and it took the JSC months to move from finding him guilty to recommending he actually be suspended.
This plays out just as often in higher education, and it has a name in the GBV literature: institutional betrayal, harm compounded not by the original act but by an organisation’s failure to respond to it honestly.
When a student reports a powerful academic, they are too often met with endless delays, ‘informal resolutions’ that favour the staff member, and the threat of counter-accusations.
Too many institutions treat reputation management as the priority, not justice. Process, dragged out long enough, becomes its own form of protection for the accused, and it costs everyone else too: complainants stay exposed to ongoing contact, witnesses disengage, and confidence in reporting systems erodes.
The alternative is what researchers call institutional courage: applying standards consistently regardless of rank, naming conflicts of interest before they become scandals, and building systems that reduce opportunities for abuse instead of waiting to punish it after the fact.
The JSC’s finding matters, but it shouldn’t be the end of the conversation, and it certainly isn’t the end of this case.
If institutions of higher learning are serious about safety and dignity, three reforms deserve urgent attention:
Prohibit intimate relationships where one party holds direct academic, supervisory, employment or assessment authority over the other, regardless of claimed consent, because true equality cannot exist inside that authority.
Reduce the absolute power supervisors hold over students, through diversified assessment panels and external examiners with real authority, not ceremonial ones.
Make investigations time-bound and independent, and remove the accused from positions of power over the accuser while the inquiry runs, rather than after it concludes.
The Mbenenge case is showing us, in real time, what happens when power goes unchecked and how easily ‘flirtation’ can be used to mask coercion. Our institutions of higher learning need to learn the lesson the judiciary is only now being forced to learn: without structural change, justice is just a word in a code of conduct that no one enforces.
Nonhlanhla Sibanda Moyo is a gender and gender-based violence specialist with extensive experience in institutional governance, prevention and response within South African higher education. She writes in her personal capacity.
