Key Takeaways
- The Judicial Service Commission (JSC) advised President Cyril Ramaphosa to suspend Eastern Cape Judge President Selby Mbenenge pending a National Assembly decision on his possible removal.
- The recommendation follows the JSC’s finding that Mbenenge engaged in gross misconduct by pursuing an inappropriate relationship with a junior court employee, Andiswa Mengo.
- Mbenenge has launched urgent review proceedings in the North Gauteng High Court, seeking to halt the JSC’s decision, obtain interim relief, and compel disclosure of all related records.
- The case raises significant questions about judicial accountability, the interplay between the JSC, the Judicial Conduct Tribunal, and parliamentary impeachment processes under Sections 177 and 20 of the Constitution and the Judicial Service Commission Act.
Overview of the JSC Recommendation
On Monday, the Judicial Service Commission issued a media statement announcing that it had resolved to advise President Cyril Ramaphosa to suspend Judge President Selby Mbenenge from his duties. The advice was made in terms of Section 20(1) of the Judicial Service Commission Act 9 of 1994, after a meeting held on 7 July 2026. The JSC excluded members designated by the National Assembly and the National Council of Provinces, as required by the Act, and considered written submissions on whether suspension under Section 177(3) of the Constitution was warranted. The statement emphasized that the suspension would remain in place pending the National Assembly’s final decision on Mbenenge’s possible removal from office.
Legal Basis and Procedural Context
The JSC’s power to recommend suspension derives from Section 177(3) of the Constitution, which allows the President to suspend a judge while Parliament deliberates on removal. The Commission’s internal procedure is governed by Section 20(1) of the Judicial Service Commission Act, which mandates that, when considering advice on suspension, the JSC must meet without the parliamentary‑appointed members. On 7 July 2026, the commission convened, reviewed the written submissions, and resolved that the evidence justified advising the President to suspend Mbenenge. The decision reflects the JSC’s interpretation that the alleged conduct constitutes gross misconduct incompatible with judicial office.
Background of the Allegations
The controversy stems from a complaint lodged by Andiswa Mengo, a secretary at the Makhanda High Court, who alleged that Mbenenge sexually harassed her between June 2021 and November 2022. The matter was first examined by the Judicial Conduct Tribunal (JCT), which heard the evidence and concluded that the relationship between Mbenenge and Mengo was consensual. Accordingly, the JCT found no gross misconduct, although it did note that the conduct breached Article 5.1 of the Code of Judicial Conduct, which governs appropriate relationships between judicial officers and court staff.
JSC’s Rejection of Tribunal Findings
The JSC reviewed the JCT’s determination and rejected it, citing “serious flaws in the tribunal’s reasoning.” The Commission argued that the tribunal failed to adequately consider the power imbalance inherent in a senior judicial officer pursuing a personal relationship with a junior employee, regardless of alleged consent. After re‑evaluating the evidence, the JSC classified Mbenenge’s conduct as gross misconduct, deeming it “grossly inappropriate” and incompatible with the dignity and therefore warranting suspension and possible removal under constitutional provisions.
Mbenenge’s Legal Challenge
In response to the JSC’s findings, Mbenenge instituted review proceedings in the North Gauteng High Court on 5 June 2026. His application names multiple respondents: the JSC, the Judicial Conduct Tribunal, the Speaker of the National Assembly, the National Assembly itself, President Ramaphosa, and the junior court employee Andiswa Mengo. The pleading seeks both interim relief—such as an urgent interdict to halt implementation of the JSC’s decision—and a substantive review of the decisions taken against him, aiming to have them set aside or declared unlawful.
Urgent Interdict Request
Within the urgent component of his application, Mbenenge asks the court to hear the matter on an expedited basis and to issue an order preventing the JSC from enforcing its recommendation to suspend him. He also seeks an injunction that would stop any impeachment or removal proceedings in Parliament until the review application is finally resolved. Essentially, he wants the court to preserve the status quo—keeping him in his judicial post—while the legality of the JSC’s actions is scrutinized.
Review Application Details
The substantive review portion of Mbenenge’s filing requests that the court set aside the JSC’s decision to reject the JCT’s finding of no gross misconduct. Alternatively, he seeks a declaration that the JSC’s decision is unlawful, unconstitutional, and invalid. He also challenges the JCT’s separate finding that his flirtatious WhatsApp exchanges with Mengo amounted to a breach of the Code of Judicial Conduct, arguing that this conduct does not rise to the level of misconduct warranting disciplinary action. By targeting both the JSC’s and the JCT’s conclusions, Mbenenge aims to undermine the factual and legal basis for any sanction against him.
Demand for Disclosure of Records
Mbenenge’s application further demands the production of the full record underlying the adverse findings. He requests transcripts, audio recordings, minutes, resolutions, attendance registers, and voting records from the JSC and the JCT relating to the initial complaint, the tribunal proceedings, oral submissions made during the disciplinary process, and the specific JSC meeting on 5 March 2026 at which the gross misconduct finding was adopted. He also seeks disclosure of how individual JSC members voted on the classification of his conduct, arguing that transparency is essential to assess whether the decision was reached lawfully and without bias.
Implications and Next Steps
The outcome of this high‑profile litigation will have significant ramifications for judicial accountability in South Africa. If the court grants Mbenenge’s interim relief, it could delay the National Assembly’s consideration of his removal, potentially prolonging uncertainty within the Eastern Cape Division of the High Court. Conversely, a dismissal of his application would reinforce the JSC’s authority to sanction judges for misconduct, bolstering public confidence in the judiciary’s self‑regulatory mechanisms. Parliament will ultimately decide, under Section 177 of the Constitution, whether to uphold the JSC’s recommendation and proceed with removal—a process that will be closely watched as a test of the balance between judicial independence and accountability.