The Judicial Service Commission (JSC) has unanimously recommended that President Cyril Ramaphosa suspend Eastern Cape Judge President Selby Mbenenge after finding him guilty of gross misconduct.
The recommendation paves the way for Ramaphosa to decide whether Mbenenge should be formally suspended while Parliament considers whether he should be removed from office.
The commission said the recommendation followed a meeting earlier this month, where commissioners agreed that Mbenenge should not continue performing his duties while the constitutional process unfolds.
According to the JSC, the proposed suspension is a protective measure rather than a sanction, aimed at preserving the integrity, dignity and credibility of the judiciary.
The commission said public confidence in the courts must be safeguarded while the National Assembly determines whether Mbenenge should be impeached under Section 177 of the Constitution.
Mbenenge argued that there was no need for a formal suspension because the Chief Justice had already placed him on special leave, meaning he is not presiding over court matters.
He also maintained that his application to have the JSC’s gross misconduct finding reviewed should first be decided before any suspension is implemented.
The JSC dismissed those arguments, saying its finding remains legally binding unless and until it is overturned by a court.
It further concluded that a formal suspension is necessary to protect the standing and reputation of the judiciary during the impeachment process.
The recommendation has now been referred to Ramaphosa, who must decide whether to suspend Mbenenge pending Parliament’s final decision.
The case stems from sexual harassment allegations brought against Mbenenge by Andiswa Mengo, who worked as a judges’ secretary at the Eastern Cape High Court.
Mbenenge has launched a legal challenge in the Gauteng High Court in Pretoria to overturn the JSC’s gross misconduct finding and halt Parliament’s impeachment process, arguing that the commission’s decision was unlawful, irrational and procedurally unfair.
At the centre of the dispute are a series of WhatsApp messages exchanged between Mbenenge and Mengo.
During proceedings before the judicial conduct tribunal, a forensic and legal linguistic expert testified that a peeled banana emoji sent by Mbenenge was intended as a coded reference to a circumcised penis after he had allegedly solicited oral sex from Mengo.
The expert also testified that Mbenenge used eggplant and peach emojis as sexual references during the exchanges.
A judicial conduct tribunal chaired by retired Judge President Bernard Ngoepe initially cleared Mbenenge of sexual harassment after accepting his version that the messages were consensual.
However, the tribunal found him guilty of misconduct for pursuing a flirtatious relationship with Mengo during working hours.
It also cast doubt on Mengo’s credibility, finding that she had omitted messages she sent to Mbenenge and rejecting her claim that she had participated in the exchanges out of fear of jeopardising her employment.
The JSC later overturned the tribunal’s findings, concluding that Mbenenge’s conduct amounted to gross misconduct.
The commission found that he had initiated and sustained a pattern of grossly inappropriate communication over an extended period, much of it outside office hours.
It also held that Mbenenge failed to recognise the unequal power relationship between himself and Mengo, abused the authority of his office and demonstrated no meaningful remorse for his conduct.
Mbenenge is currently challenging both the JSC’s gross misconduct ruling and the tribunal’s misconduct finding through the courts.