A Judicial Service Commission (JSC) tribunal has found Eastern Cape judge president Selby Mbenenge not guilty of gross misconduct or sexual harassment. However he did commit misconduct by engaging in a flirtatious WhatsApp relationship with a junior court official during working hours and at the workplace. The ruling follows a formal inquiry into a complaint by Andiswa Mengo, a clerk in his department who alleged Mbenenge subjected her to unwelcome sexual advances and abused his position of authority.
In her formal complaint Mengo alleged Mbenenge engaged in improper communications with her in a manner that was intimidating or coercive. In its report dated January 21, the three-member tribunal — chaired by retired judge president Bernard Ngoepe — concluded that the evidence showed a consensual exchange of flirtatious and, at times, salacious messages between the two, rather than sexual harassment. In its conclusion, the tribunal found that Mengo had compromised her own credibility by lying.
The fact that she had omitted flirtatious messages she had sent Mbenenge from her complaint showed a lack of honesty. The tribunal found that the WhatsApp messages therefore did not constitute sexual harassment, there was no evidence that the disputed pictures Mengo received had been sent by Mbenenge, leading to the conclusion that he was “not guilty of gross misconduct, gross incompetence and/or gross incapacity”. It said the relationship was inappropriate in a professional setting, particularly given the workplace hierarchy, but conceded that most of the message exchanges had taken place outside work hours.
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This meant the misconduct did not meet the constitutional threshold for gross misconduct that could trigger removal proceedings under section 177 of the constitution. The matter now returns to the JSC, which must decide what sanction, if any, should follow for misconduct not amounting to gross misconduct.
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