Eastern Cape Judge President Selby Mbenenge has filed a supplementary affidavit alleging that the Judicial Service Commission (JSC) reached a conclusion of gross misconduct against him before it formally recorded reasons for that finding. The filing, which draws on the JSC’s own transcript and internal correspondence, is part of a pending High Court review and has not yet been tested in court.
Allegation: outcome first, reasons later
According to the affidavit, material from the JSC’s recorded deliberations of 5 March 2026 and internal emails suggest the commission conducted a secret ballot on propositions drafted during the meeting and adopted a conclusion that the filing says was reached prior to the formulation of reasons.
The Judicial Conduct Tribunal, which spent 30 days hearing witnesses and assessing evidence, concluded there was no sexual harassment, no proven abuse of power and no gross misconduct. The Tribunal did, however, find that sexualised exchanges during working hours violated Article 5.1 of the Code of Judicial Conduct and amounted to ordinary misconduct—a finding that ordinarily invites corrective measures short of removal.
The distinction between ordinary misconduct and gross misconduct is constitutionally decisive: ordinary misconduct allows for reprimand and remedial steps, while gross misconduct exposes a judge to impeachment proceedings and the loss of office. Mbenenge’s supplementary affidavit contends the JSC crossed that constitutional threshold without expressly overturning the Tribunal’s central factual findings.
What the Tribunal found
- The Tribunal heard evidence over 30 days and evaluated witness credibility.
- It found no sexual harassment and no abuse of power.
- It described exchanges between Mbenenge and court secretary Andiswa Mengo as mutually flirtatious, and said he reasonably believed them to be welcome.
- When one proposition was rejected, the Tribunal found Mbenenge accepted the rejection and did not persist.
- Overall, the Tribunal characterised the conduct as misconduct but not gross misconduct.
JSC decision and the review
The JSC, however, declared Mbenenge guilty of gross misconduct on 5 March 2026. The supplementary affidavit argues the commission reached that conclusion through a secret ballot on propositions formulated during that meeting, effectively arriving at an outcome and then constructing reasons to support it.
The allegations are now part of a High Court review application. The respondents in that matter have been given time to file answering affidavits until 30 October 2026, and the JSC and other parties remain entitled to respond to the claims and to defend their process.
| Body | Finding |
|---|---|
| Judicial Conduct Tribunal | No sexual harassment; no abuse of power; misconduct short of gross misconduct |
| Judicial Service Commission | Declared gross misconduct (allegedly after secret ballot) |
Why the process matters
The procedural concerns raised in the affidavit touch on constitutional safeguards for judicial independence and fairness in disciplinary processes. Gross misconduct is the constitutional threshold that can lead to impeachment; if a commission reaches that conclusion without robustly engaging with the tribunal’s factual findings, it raises questions about proportionality and due process.
The affidavit anchors its critique in the JSC’s own record, asserting the commission's deliberations and internal correspondence are sufficient to show that the reasoning followed a preferred result rather than the other way round. Those assertions remain to be tested in the High Court.
Next steps and public interest
The matter will proceed through the courts on the timetable set for the review application. Respondents have until 30 October 2026 to file answering affidavits. If the High Court grants relief, it could require the JSC to revisit its decision-making process or set aside its finding; if the court upholds the JSC, the gross-misconduct finding will remain in place pending any further legal remedies.
The case is being watched closely because it engages the integrity of judicial oversight mechanisms in the province and nationwide. For the Eastern Cape judiciary and its users, the outcome will determine not only the fate of the individual judge but also the standards by which judicial conduct is assessed and regulated.
Reporting on the filing highlights the importance of transparent, evidence-based decision-making by oversight bodies. The High Court’s handling of the review will be pivotal in clarifying how the JSC must align its conclusions with tribunal findings when the constitutional prospect of removal is in play.
