10 December 2024
A Judicial Conduct Tribunal probing a complaint of sexual harassment against Eastern Cape High Court Judge President Selby Mbenenge will sit early next year. Photo: Oupa Nkosi for Judges Matter (used with permission)
A Judicial Conduct Tribunal probing a complaint of sexual harassment against Eastern Cape High Court Judge President Selby Mbenenge, the first such case in South Africa against a sitting judge, will commence early next year.
The complaint against Mbenenge, which could result in his impeachment, was laid by Andiswa Mengo, a secretary who works for another judge in the Eastern Cape. The hearing has been set down for 13 to 24 January.
But some of the evidence will be led behind closed doors.
The tribunal president, retired Judge Bernard Ngoepe, has ruled that the proceedings will be held partly in camera “in the interests of the judiciary”.
Mengo and the SABC had made submissions to the tribunal that the hearing should be open to the public and broadcast live, while Judge Mbenenge argued that the entire hearing should be held in camera.
Judge Ngoepe, in his ruling, said that the Judicial Service Commission Act provided for an “in camera” default position but gave him, as the tribunal president, discretion to open the hearing if it were in the public interest for the purposes of transparency.
He said both Mengo and the SABC had largely based their arguments on the importance of a public hearing and that the matter was in the public interest.
Mengo, he said, had raised the “scourge of abuse and sexual harassment of women at work”. But she had not given any explanation how the fight against this would be undermined by an in camera hearing.
This, he said, was venturing into the realm of conjecture.
“The purpose of these proceedings is not to fight other battles. They are tailored to deal with complaints, specifically against judges.
“We must be careful not to weaponise these proceedings to fight other battles,” he said in his ruling dated 9 December 2024.
Judge Ngoepe said Judge Mbenenge had argued that the allegations had the “potential to cause untold, irreparable reputational damage, were they not to be sustained in the final analysis and the proceedings end up being accessed by the public and the media”.
Judge Ngoepe said looking at the nature of the allegations, there was merit to his concerns.
“While he concentrated on the reputational damage to himself, I will concentrate on possible damage to the judiciary because he is not just a member thereof, but one of its leaders.”
He said that while the purpose of the prosecution of complaints against judges was to protect the image of the judiciary, the Act sought to ensure that while that was being done “we do not unwittingly cause irreparable damage to the very image sought to be protected”.
He said this could happen where damaging allegations, aired in public, were later found not to be true.
“By merely holding these proceedings, a strong and unequivocal message has already been sent out there that it does not matter how junior you are in the workplace, your sexual harassment complaint would be diligently investigated and appropriate steps taken against the accused person irrespective of their seniority. I do not see how this message can be nullified by an in camera hearing.”
He said the fact that Judge Mbenenge had been placed on special leave was another “clear message”.
Judge Ngoepe said any acquittal would not repair any possible damage to the judiciary; there would not be a “public cleansing ceremony” during which the damaging allegations could be erased or retracted.
Damaging the judiciary could not be in the public interest, he said.
He ruled that the proceedings will be held partly in public and partly in camera. Evidence relating to the WhatsApp messages, which Judge Mbenenge did not deny the contents of or that they came from him, would be heard in public and could be broadcast live.
But evidence relating to messages and pictures which he denied came from him or his cellular phone, and messages and pictures relating to some indecent incidents alleged to have occurred in his chambers, would be held in camera.
Judge Mbenenge has been the Judge President of the Eastern Cape since November 2017.
The allegations by Mengo relate to alleged unwanted interactions in 2021 and 2022 which Judge Mbenenge claimed were consensual. She first filed the complaint in January 2023.
In September 2023, a Judicial Conduct Committee ruled there was a prima facie (on the face of it) case of gross judicial misconduct against him which, if confirmed, could lead to his impeachment. The Judicial Service Commission then appointed the tribunal to hear the matter.
Judges Matter has reported that this is the first major case of sexual harassment to reach the formal stage of the complaints process. However, it criticised the fact that Judge Mbenenge was allowed to go on special leave, instead of being subjected to the usual automatic suspension.