WHEN the Judicial Conduct Tribunal issued its finding earlier this year, many legal observers exhaled with relief. Judge President Selby Mbenenge had been found guilty – but only of “misconduct simpliciter”: a flirtatious WhatsApp exchange, conducted at work, during working hours. An impropriety, yes. A dismissible offence, no.
That finding was always a fraction of the truth. On 5 March 2026, the Judicial Service Commission made it official. Convening in a formation constituted without parliamentary designees, the small JSC considered the Tribunal’s report alongside extensive written representations from both Mbenenge and his complainant, court secretary Andiswa Mengo – and it fundamentally disagreed.
The JSC’s conclusion, contained in a tightly argued report, is unambiguous: Mbenenge is guilty of gross misconduct under section 177(1) of the Constitution. The matter now sits before the National Assembly, which alone has the constitutional power to remove a judge.
“The conduct concerned is an affront to the propriety of judicial office and the values underpinning the Constitution. It undermines integrity, accountability, equality, respect and dignity.”
THE COMPLAINT THAT SHOOK THE EASTERN CAPE BENCH
Andiswa Mengo worked as a secretary to one of the judges in the Makhanda High Court – a junior member of staff in an institution where Mbenenge, as Judge President, stood at the apex of administrative and judicial authority. Her complaint, covering the period from approximately June 2021 to November 2022, described a sustained pattern of WhatsApp messages from Mbenenge that she characterised as sexual harassment.
The Tribunal heard the evidence, examined the admitted message exchanges, criticised Mengo’s testimony in parts, excluded several categories of evidence, and ultimately concluded that the communications were not unwelcome on a balance of probabilities. It followed that no sexual harassment had occurred. Mbenenge, the Tribunal found, had merely flirted — improperly, at work, but consensually.
The JSC, guided by the Supreme Court of Appeal’s 2023 decision in Freedom Under Law v JSC, accepted its authority to depart from the Tribunal’s factual findings where it could demonstrate reasons for doing so. It found those reasons in abundance.
FOUR WAYS THE TRIBUNAL GOT IT WRONG
The JSC identified four interconnected failures in the Tribunal’s reasoning, each more damning than the last.
First, the Tribunal had looked at the wrong things. By confining its analysis to whether the exchanges occurred at a workplace during working hours, it had ignored their nature, their content, and their context. The communications, the JSC found, were not confined to working hours at all – they extended well beyond both time and place, and their character bore directly on what is expected of a Judge President interacting with junior staff. In reducing the matter to geography and clock-time, the Tribunal had understated it.
Second, and more fundamentally, the Tribunal had applied the wrong legal standard for assessing sexual harassment. Rather than applying the legally required balanced amalgamation of objective and subjective enquiry – one that takes account of the complainant’s situation and the respondent’s conduct in context – the Tribunal had treated the question as predominantly objective: were the messages unwelcome? By that standard alone, it answered no.
Third, the Tribunal had assessed Mbenenge’s advances cumulatively – asking whether the relationship as a whole was welcome – rather than examining whether particular messages or exchanges, viewed individually and in their proper context, amounted to unwelcome sexual conduct. The approach effectively collapsed a pattern of behaviour into a single impression, obscuring the gravity of individual acts.
Fourth, and most gravely of all, the Tribunal had failed to weigh the power imbalance. It had approached the matter, in the JSC’s words, as though the parties were “consenting adults on an equal footing who had the right to freedom of association” – thereby stripping the interaction of its defining feature: that Mbenenge was the most powerful person in the judicial hierarchy Mengo inhabited, and she was among the least.
“JP Mbenenge showed no remorse for his conduct. His testimony revealed that he does not appreciate the responsibility associated with his position and the power imbalance it creates.”
POWER, PURSUIT AND THE ABSENCE OF REMORSE
The JSC’s own finding rests on four pillars. The first is the nature of the communications themselves: the JSC found them to be sexual in character, and to reflect a stated intention on Mbenenge’s part to pursue a sexual relationship with Mengo. The characterisation is not hedged. This was not ambiguous attention. It was pursuit.
The second pillar is the authority Mbenenge wielded. As Judge President, he held a position of institutional dominance over every person working in the courts under his jurisdiction – and Mengo, as a secretary to one of his judges, was at the furthest remove from his level. The JSC found that this imbalance was not merely contextually relevant; it was structurally decisive.
The third pillar is what Mbenenge himself revealed in testimony. Rather than demonstrating any understanding of how his position and its attendant power shape every interaction he has in the workplace, he appeared – according to the JSC – to be unaware of it. That absence of self-awareness in a senior judicial officer is, the Commission found, itself a disqualifying characteristic.
The fourth pillar is remorse – or rather, its complete absence. Mbenenge expressed none. For the JSC, this was not incidental. In the context of judicial office, where the public must be able to trust that judges understand and are bound by the values they are appointed to uphold, the failure to acknowledge wrongdoing compounds the wrongdoing itself.
WHAT THIS MEANS FOR MENGO
For Andiswa Mengo, the JSC’s decision is a vindication that the Tribunal withheld. She came forward with a complaint, submitted herself to cross-examination, had aspects of her testimony publicly criticised, and watched the Tribunal conclude that the man who had pursued her had done nothing actionable. The months between that finding and this one cannot have been anything other than an ordeal.
The JSC’s report does not restore what that ordeal cost. But it does do something important: it records, formally and with legal force, that what Mengo experienced was real, that it was serious, and that the institutional power that shaped her exposure to it was a relevant fact – not, as the Tribunal treated it, an irrelevance.
It also, implicitly, rebukes the tendency – present not only in judicial proceedings but in workplace accountability processes across South Africa – to assess whether harassment occurred by examining the behaviour of the complainant, rather than the conduct and responsibilities of the accused.
WHAT THIS MEANS FOR THE JUDICIARY
The implications for the judiciary are both immediate and long-reaching. In the immediate term, the matter proceeds to the National Assembly, which must decide – on the JSC’s recommendation of gross misconduct – whether to remove Mbenenge from office. The constitutional bar for removal requires a two-thirds majority. That is a political process, and it will unfold in a political context.
But the legal and institutional precedent the JSC has set matters independently of that outcome. By insisting that power imbalances are not a decorative consideration but a structurally determinative one in sexual harassment assessments; by rejecting the Tribunal’s reduction of the matter to a flirtation; and by affirming that judges must understand what their authority does to the spaces around them – the JSC has issued guidance that will resonate well beyond the Eastern Cape.
Courts and accountability bodies across the continent will be watching. South Africa’s post-apartheid constitutional architecture has long been held out as a model of institutional design. The test of that architecture is not what it says in its founding documents, but what it does when one of its own most powerful officers is called to account.
On 5 March 2026, the JSC passed that test. The question now is whether Parliament will.
