Mapaballo Borotho
- Eastern Cape Judge President Selby Mbenenge has been found guilty of misconduct for initiating a flirtatious relationship with a junior staff member but cleared of sexual harassment claims.
- The tribunal ruled the relationship appeared consensual and found that some of the complainant’s testimony damaged her credibility.
- The Judicial Service Commission will consider possible sanctions in April, while Mbenenge remains on special leave
Eastern Cape High Court Judge President Selby Mbenenge has been found guilty of misconduct for initiating a flirtatious relationship with a junior secretary, Andiswa Mengo.
He is likely not to face impeachment after the Judicial Conduct Tribunal ruled that his actions did not amount to sexual harassment. He was instead found guilty of misconduct for initiating a relationship with his junior during working hours at his workplace.
The tribunal ruled that it was not sexual harassment, as Mengo had initially claimed.
Mengo alleged that the senior judge had sent her sexually explicit WhatsApp messages between 2021 and 2022. In some of the messages, Mbenenge reportedly asked Mengo for naked pictures and if they could be intimate.
These allegations were never denied by Mbenenge, who claimed the relationship was consensual. He explicitly denied sending her a picture of his penis or asking her for oral sex in his Mthatha chambers.
Mengo said his advances were totally unwanted, adding that her “flirtatious” responses were due to shock and confusion, and fear of possible consequences if she refused him.
In its ruling, the tribunal went step by step through each allegation and concluded that Mengo had “clearly lied” on some issues, which had “severely compromised” her credibility.
“We make it clear that we did not disbelieve her simply because she was a woman. The finding that she did lie did immeasurable damage to her case,” the tribunal said.
“There was also no evidence, on a balance of probabilities, that the alleged incident in the office, where Mengo claimed Mbenenge had asked her for oral sex, had occurred”.
Referring to section 5.1 of the Code of Judicial Conduct, which requires judges to act honourably and avoid conduct prejudicial to the administration of justice, the tribunal said it had been established that Mbenenge initiated the flirtatious conversations by asking personal questions unrelated to work.
Some of the messages were exchanged during working hours, when both were meant to be working.
The tribunal said its finding of misconduct, rather than gross misconduct, was partly based on Mbenenge’s belief that his advances were not unwelcome, due to Mengo’s responses.
“As we have seen, the messages were not for public consumption. The parties agreed to delete them, thereby intending to keep them between themselves,” the tribunal said.
The Judicial Service Commission (JSC), sitting without political party representatives, is expected to consider the report in April.
If the JSC accepts the findings, it may order Mbenenge to apologise, issue a written warning or reprimand, require counselling, or reduce his salary.
Mbenenge has been on special leave since 2024.
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