The Judicial Conduct Tribunal has ruled that Eastern Cape Judge President Selby Mbenenge is not guilty of gross misconduct but is guilty of serious misconduct under Category B. This finding means he avoids impeachment but faces potential sanctions from the Judicial Service Commission. The commission will now review submissions before deciding on guilt and penalties.
The Judicial Conduct Tribunal's recent decision regarding Eastern Cape Judge President Selby Mbenenge has left many questions unanswered, despite clearing him of the most severe charge. On February 5, 2026, the tribunal determined that Mbenenge was not guilty of Category C gross misconduct, which could lead to impeachment and removal from office. However, it held him accountable for Category B misconduct, described as serious but not impeachable, under the Judicial Service Commission Act.
This distinction is crucial. Category A involves lesser issues, while Category B warrants sanctions such as fines, suspensions, written warnings, or compulsory training, as outlined in section 17(8) of the act. The tribunal also made credibility findings against the complainant, Andiswa Mengo, noting she was untruthful on key aspects of her allegations. These findings are likely to endure when the Judicial Service Commission (JSC) reviews the case.
The JSC must now solicit written submissions from both Mbenenge and Mengo to argue for or against the ruling, including on sanctions. Mbenenge has expressed intent to return to work immediately, but legal processes under sections 19(2) and 20 of the act require the JSC's final determination before he can resume duties. Previously, in 2024, the JSC allowed him special leave instead of suspension during the investigation—a departure from standard practice.
Possible sanctions draw from precedents: Judge Nkola Motata faced a R1-million fine (later overturned), Chief Justice Mogoeng Mogoeng issued a public apology, and others underwent training. The JSC's choice should prioritize restoring public confidence in the judiciary, considering the tribunal's facts and broader context.
Critics highlight a lack of engagement with Constitutional Court rulings on sexual harassment, which emphasize power imbalances and substantive equality. Since the complaint, Chief Justice Mandisa Maya has implemented a victim-centered policy to support harassment complainants, potentially easing future reporting. The outcome will test the judiciary's commitment to accountability and equality.
