No suspension for Eastern Cape judge president Selby Mbenenge

Mbenenge already on special leaving pending judicial conduct tribunal: JSC

Franny Rabkin Legal correspondent
Eastern Cape judge president Selby Mbenenge. File photo.
Eastern Cape judge president Selby Mbenenge. File photo.
Image: Eugene Coetzee

The Judicial Service Commission (JSC) has decided it will not recommend to President Cyril Ramaphosa that Eastern Cape judge president Selby Mbenenge be suspended while a Judicial Conduct Tribunal investigates a complaint of sexual harassment against him.

In a statement on Thursday the “small JSC” — the JSC without its National Assembly and NCOP members — said it had decided to advise the president “that it was not desirable” for him to suspend Mbenenge — because the judge president “is on special leave pending the outcome of the tribunal”.

“In this period [he] is required to finalise all partly heard matters,” said the statement. 

The JSC decided Mbenenge should face a tribunal in December but is yet to announce when the tribunal will get under way. The tribunal will be the first to investigate allegations of sexual misconduct against a judge. The complaint was made by a judge's secretary, who has been named in the JSC's statement as A Mengo.

It is unclear whether there are any conditions attached to Mbenenge's special leave. JSC spokesperson Sesi Baloyi SC was unable to comment by the time of publication. JSC spokesperson Mvuso Notyesi could not be reached.

When judge president John Hlophe was on special leave after a complaint was made against him to the JSC in 2008, he, of his own accord, went back to work despite the complaint being unresolved.

The JSC cleared him of gross misconduct a few months later, but this decision was set aside by the Supreme Court of Appeal in 2011. Despite the SCA decision and right up until 2022, Hlophe remained on the bench and at the helm of the Western Cape division.

The JSC has previously told the Sunday Times, in relation to Hlophe, that there were only two points at which it could advise suspension for a judge: when it decides to recommend a tribunal and when it decides to refer a judge to parliament for impeachment.

In Hlophe's case, the JSC decided not to recommend suspension when a tribunal was established. Its hands were therefore tied until the JSC decided to refer him to parliament for impeachment.    


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