OPINION | Mbenenge's case is an opportunity to reaffirm the judiciary’s commitment to ethical conduct, accountability

Eastern Cape judge president Selby Mbenenge.
Eastern Cape judge president Selby Mbenenge.
Image: Eugene Coetzee

Few tasks are as daunting for any tribunal as the adjudication of matters implicating one of their own. Such cases strike at the heart of institutional integrity and demand an unwavering commitment to justice, regardless of how uncomfortable the process may be.

Retired judge president Bernard Ngoepe’s leadership of the Judicial Conduct Tribunal tasked with investigating allegations of sexual harassment against Eastern Cape judge president Selby Mbenenge is a testament to this complex balancing act.

At stake is not merely the reputation of an individual judge but the public’s faith in the judiciary as an institution. Mbenenge’s legacy and career hang precariously in the balance, after allegations of improper conduct made by Andiswa Mengo, a secretary employed at the Eastern Cape High Court.

Mengo alleges that Mbenenge subjected her to unwelcome advances over an extended period, a claim corroborated by evidence submitted during the tribunal proceedings.

It is easy to sympathise with Mengo, who finds herself navigating a situation fraught with personal and professional complexities. Some of her responses under questioning have appeared inconsistent, leading to perceptions that she may have, at times, engaged with Mbenenge in ways that complicate the narrative of her innocence.

For instance, her apparent acknowledgment of salacious messages from Mbenenge is likely to be seized upon by his defence to suggest complicity or mixed signals. Yet, such reasoning risks undermining a broader understanding of how power dynamics operate in workplace harassment cases.

Sexual harassment within hierarchical institutions, particularly one as steeped in authority as the judiciary, often leaves victims grappling with an array of conflicting emotions – fear, confusion, shame, and a reluctance to jeopardise their careers. Mengo’s case demonstrates this dynamic, where her testimony at times seemed to perplex the tribunal. However, one must consider the inherent difficulty of speaking truth to power, especially when the accused occupies a position as elevated as that of a judge president.

A particularly damning aspect of the case is the evidence of Mbenenge’s repeated requests for Mengo to delete his late-night WhatsApp messages – messages as salacious as they are patently inappropriate. These requests, submitted as evidence before the tribunal, are not merely troubling; they provide a stark indication of mens rea, or the mental state demonstrating an awareness of wrongdoing. Such behaviour not only undermines Mbenenge’s credibility but also raises broader questions about accountability and transparency within the judiciary.

The tribunal’s task is further complicated by the necessity of navigating the tension between protecting the dignity of the accused and ensuring justice for the complainant.

Ngoepe’s role in leading this inquiry is unenviable as it demands an impartial yet firm approach to upholding the principles of justice while maintaining public confidence in the judiciary’s ability to self-regulate.

The Mbenenge case is not an isolated incident but part of a troubling pattern of allegations of sexual misconduct within the judiciary. These hearings have reignited public debate on an issue that has long been whispered about but seldom addressed openly.

The allegations against Gauteng judge president Dunstan Mlambo, raised during his 2022 interview for the chief justice position, serve as a case in point. While those allegations were widely dismissed as opportunistic and politically motivated, they nonetheless highlighted the need for robust mechanisms to address such claims.

By contrast, the allegations against Mbenenge have been deemed credible enough to warrant a full tribunal inquiry. This distinction underscores the importance of separating baseless accusations from substantiated claims and ensuring that due process is followed in all cases.

The judiciary occupies a unique position as the final arbiter of justice in society. Allegations of misconduct against its members threaten to erode public trust, which is essential for the judiciary’s legitimacy. The Mbenenge case offers an opportunity to demonstrate that no one, regardless of rank or status, is above the law. It is a chance to reaffirm the judiciary’s commitment to ethical conduct and accountability.

At the same time, it is critical to recognise the courage it takes for individuals like Mengo to come forward. Victims of harassment often face immense personal and professional risks in doing so, particularly in environments where power imbalances are pronounced. Institutions must therefore strive to create a culture where such allegations can be addressed fairly and without fear of reprisal.

As the Judicial Conduct Tribunal continues its deliberations, the stakes could not be higher. For Mbenenge, the outcome will determine the fate of his judicial career.

For the judiciary, it is a test of its ability to uphold the principles of justice and accountability. For society, it is a reminder of the need to confront uncomfortable truths and ensure that institutions of power are held to the highest standards of conduct.

  • Khaas is founder and chairperson of Public Interest SA, an organisation committed to promoting ethical governance, justice, and accountability in SA

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