Eastern Cape Judge President Selby Mbenenge; (Nelius Rademan/Foto24/Gallo Images)
The Judicial Service Commission (JSC) has recommended that President Cyril Ramaphosa suspend Eastern Cape judge Selby Mbenenge after it was revealed that he had charged an aspiring lawyer with criminal assault after accusing him of sexual harassment. There are growing concerns that the decision has been made.
Sources close to the process said the decision taken in early February by the so-called “small JSC” to exclude parliamentarians was not an easy or obvious decision and ignored precedent.
Mbenenge was placed on special leave after Chief Justice Raymond Zondo requested him to do so after he was accused of harassing a female clerk in the Makanda district, and the commissioners decided to suspend him. It was decided not to make a recommendation.
“The reason for the JSC’s decision is that Chief Justice Mbenenge is on special leave pending the outcome of the tribunal and all matters that were partially heard during this period need to be finalized,” the commission said. said last Wednesday.
However, in the past, many judges have been suspended pending the outcome of investigations into allegations of serious misconduct. They are all asked to complete work on the issues they were hearing at the time.
“Since the 2010 amendments to the JSC Law, the JSC has consistently recommended that judges accused of serious judicial misconduct be suspended pending investigation by the Judicial Conduct Tribunal.” Matter said last week.
“Currently, at least five judges have been suspended for various misconduct: Judge John Hlophe, Judge Tintswalo Nana Makhubele, Judge Mushtaq Parker, Judge Chiphiwa Maumela and Judge Nomonde Mngubisa Tusi. be.”
Mr Hlophe's suspension came at a late stage, rather than when the charges against him were referred to court. This is because the issue predates the adoption of the amendment introducing the tribunal. Ramaphosa ultimately suspended him late last year pending an impeachment decision by Parliament, which is expected on Wednesday.
Officials noted that Maumela and Parker were on special medical leave at the time, but were suspended.
“This appears to be inconsistent with previous decisions suspending judges facing serious charges even though they were already on special leave.”
In retrospect, he said, the decision became even more alarming given the criminal charges Mbenenge had brought against Andiswa Mengo.
“This sends a message to women who have made sexual harassment accusations against powerful men that their voices will not be heard and taken seriously. It becomes a matter of hypocrisy.”
It is certainly understood that Mr Mbenenge's strong reputation as the presiding judge of a large division was one of the factors weighing on the commissioner when making this decision. Similar off-topic considerations were reportedly raised by commissioners about respect for him within the community and within the church.
People close to the process say commissioners were almost certainly unaware that Mbenenge had filed criminal charges against Mengo when they made their decision two weeks ago.
JSC spokesperson Mvuzo Notiesi said they had not and would not consider it.
“JSC was not aware,” he said. Mail and Guardian.
“In any case, criminal cases are separate and legitimate legal proceedings by other organs of the state. It does not affect the JSC's consideration.”
Notiesi's fellow JSC spokesperson, Ceci Baloi, is acting as a judge this month and could not be reached for comment.
But on Monday questions were raised about whether it was appropriate for Mr Notiesi to speak on the matter, given his long professional relationship with Mr Mbenenge as a lawyer. He instructed Mbenenge in many cases, and the latter was probably the most senior advocate at the Mbata court. Matiwane v. President of the Republic of South Africa, etc.
Mbenenge lodged a case with East London police in December and was transferred to Pretoria soon after.
The incident comes exactly a year after Mr Mengo, who was clerking for Makanda High Court acting judge Avinash Gonvije, filed a complaint of sexual harassment which was subsequently referred to the Judicial Conduct Commission.
She was then reassigned to the Solicitor General's Office in the National Office of the Chief Justice's Office in the Midlands.
The JSC decided in December that Mr Mbenenge should be brought to court, but no date has been set for starting proceedings.
A year ago, after screenshots of lewd messages allegedly sent by Mbenenge to Mengo were published in Sunday newspapers, Judges Matter called for the chief judge to resign pending resolution of the charges.
It also reiterated its call for the judiciary to adopt a formal policy on dealing with sexual harassment.
This issue was raised two years ago during an interview with four presiding judge candidates, including members of the JSC. Mr Zondo, who was deputy chief justice at the time, admitted in an interview that no such policy existed.
In February last year, Mr Zondo announced that a committee under Deputy Chief Justice Mandisa Maya had been set up to draft an anti-sexual harassment policy for the judiciary.
“So there's some work to do going forward. It didn't happen as quickly as I expected,” he admitted.