JSC to discuss Mbenenge tribunal on sexual harassment

RAY HARTLE

South Africa’s Judicial Service Commission will on Monday, 2 October 2023, discuss the referral to a judicial tribunal of a complaint of sexual harassment against Eastern Cape judge-president Selby Mbenenge.

The JSC will meet in Sandton throughout the week as part of its regular programme of work.

But before beginning to interview candidates for positions to the bench in various high courts around the country, commissioners will discuss the historic decision of the Judicial Conduct Committee to refer the complaint of sexual harassment against Mbenenge, to a judicial tribunal.

Strictly following the terminology of the Constitution and the JSC Act, the JCC found that the complaint, by Makhanda court official Andiswa Mengo, if established, “will prima facie indicate incapacity, gross incompetence or gross misconduct” against Mbenenge and should be investigated by a tribunal.

That finding, which has the status of a recommendation to the JSC, must now be considered by the commission. If it accepts the finding, it must request chief justice Raymond Zondo to appoint the tribunal and immediately inform President Cyril Ramaphosa of its request.

The discussion on October 2 has serious implications for Mbenenge and for the judiciary as a whole. If the tribunal ultimately finds the complaint to be valid, Mbenenge could face impeachment in Parliament and potentially be removed from office.

In the interim, if the JSC requests Zondo to appoint a tribunal, the JSC must also advise Ramaphosa of the desirability of suspending Mbenenge until the entire current process has run its course.

Only the President may authorise the removal or suspension of a sitting judge.

Until now, Mbenenge has continued to function fully as a judge and judge-president, wielding wide powers that include recommending the appointment of acting judges and acting deputy judges-president in Gqeberha and Mthatha.

He has also potentially occupied the same office spaces as the woman who complained against him.

Deputy chief justice Mandisa Maya, the country’s highest ranking women judge, demurred in September when asked what she might say to women on the fact that the judiciary had allowed Mbenenge to continue his usual duties.

Monday’s meeting will also provide justice minister Ronald Lamola with an opportunity to give the executive’s view on Mbenenge’s position. Thus far, he has steadfastly declined to comment on the issue, repeatedly stating that he will speak when the matter comes up before the JSC, of which he is a part.

There was speculation among court officials last week that Mbenenge might not be at his post when the final court term for the year starts on October 2.

The judge-president did not respond to calls to his cellphone or to a WhatsApp query.

JSC spokesperson Advocate Sesi Baloyi SC confirmed on September 28 that the JCC recommendation in the Mbenenge matter was on the agenda for Monday’s meeting. She said there was “no JSC position yet” on the matter.

Things would be “clearer” on Monday.

JSC to discuss Mbenenge tribunal on sexual harassment

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