While a myriad of issues hang in the balance following the outcome of the Judicial Conduct Tribunal report, which exonerated Eastern Cape Judge President Selby Mbenenge of gross misconduct related to sexual harassment allegations against him, the Office of the Chief Justice (OCJ) has been mum on whether he will immediately resume duties. 

The Tribunal, however, found Mbenenge guilty of a lesser charge of misconduct and ruled that the “flirtatious – others very salacious” exchange of WhatsApp messages between sexual harassment complainant, Andiswa Mengo, and him was flirtation between two adults and this was consensual.

When the Tribunal was established, Mbenenge was not suspended from his position, but he instead volunteered to take special leave until the disciplinary process was complete. However, the disciplinary process is incomplete pending the determination of the Judicial Services Commission (JSC). 

Enquiries to the OCJ probing the resumption of duties of JP Mbenenge were acknowledged on Wednesday, but were yet to be answered.

Mengo’s legal team confirmed she remains employed as a judge’s secretary at the Eastern Cape High Court, Makhanda, and has indicated they would take the Tribunal’s findings on review. 

Further enquiries to both Mengo and Mbenenge’s legal representatives were not answered by deadline.

Head of the Gender Justice Programme at the Centre for Applied Legal Studies (CALS), Dr Sheena Swemmer, said Mbenenge’s intent to return to office reflects a pattern of power at work. 

“When someone who has been found guilty of misconduct, even at a lesser level, acts as though they can simply resume authority, it reflects a broader pattern of assumed (and perhaps experienced) power at work. It signals a belief that one can decide the outcome of their misconduct themselves, rather than submit to the institutions tasked with deciding it.

“From a feminist legal perspective, this matters. Sexual harassment cases are precisely about the misuse of power. When authority is asserted in this way, it risks reproducing the very dynamics that the law is meant to address, where power speaks louder than accountability, and where someone effectively positions themselves as judge in their own case,” said Dr Swemmer.

She added that the Tribunal’s outcome was “heartbreaking, but not surprising”. 

“The problem is that the Tribunal treated sexual harassment as a neutral, technical dispute between equals. That kind of ‘neutral’ approach ignores the reality of power, gender, and vulnerability, and that is not what our Constitution requires.

“Instead of actively protecting those values, the process ended up looking and feeling like a traditional courtroom fight, where credibility is attacked, and power dynamics are downplayed. For cases about sexual harassment and discrimination, that approach falls short of constitutional standards,” said Dr Swemmer, who added that intervention is necessary.

Social justice activist, theologian, and political analyst, Dr Clyde Ramalaine, weighed in on the matter when he said the Minister of Justice has no authority to instruct Mbenenge to remain at home.

Dr Ramalaine further added that the OCJ “the OCJ appeared to retreat after IOL broke the story of the Chief Justice’s insistence that JP Mbenenge could not return to office and must vacate it.”

He said this was “an attempt to bully him (JP Mbenenge) into leaving under the Senzo Mchunu ‘immediately’ frame”.

“One must ask why the Chief Justice is so deeply invested in this matter. Did she, like certain one-dimensional feminists parading the streets of social media, hope for a predetermined outcome irrespective of the law?

“I dare assert that what we are witnessing is a sinister, sickly strain of feminism on parade, one that shows no regard for the outcomes of a duly constituted Tribunal, nor for the authority of law itself.”

chevon.booysen@inl.co.za

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