Mbenenge Case
Makhanda, Eastern Cape – Legal expert Dimakatso Nchodu has delved into the complex layers of the misconduct case against Eastern Cape Judge President Selby Mbenenge, highlighting how power imbalances in the workplace can complicate complaints of inappropriate behaviour and what options remain for those affected. Her analysis comes after a Judicial Conduct Tribunal cleared Mbenenge of gross misconduct but found him guilty of a lesser breach for starting a flirtatious relationship with his secretary, Andiswa Mengo. Nchodu stresses that such rulings raise big questions about fairness in professional settings, where bosses hold sway over staff, and she explores paths for further action like court reviews to seek justice. This case has sparked wider talks on how victims navigate systems that sometimes seem stacked against them, especially in high-stakes roles like the judiciary where trust is everything.
The Tribunal’s Ruling and Its Key Findings
The Judicial Conduct Tribunal wrapped up its probe into Mbenenge’s actions, delivering a report that stopped short of recommending his removal from the bench. Chaired by retired Gauteng High Court Judge President Bernard Ngoepe, with retired Gauteng High Court Judge Cynthia Pretorius and Advocate Gift Mashaba SC as members, the panel sifted through evidence including WhatsApp messages exchanged between Mbenenge and Mengo from June 2021 to November 2022. They concluded that Mbenenge started and kept up a flirtatious chat during work hours, which breached Article 5.1 of the Code of Judicial Conduct. This rule demands judges uphold the judiciary’s integrity and avoid anything that harms justice’s administration.
However, the tribunal ruled out gross misconduct, gross incompetence, or gross incapacity, finding no solid proof of sexual harassment. They noted inconsistencies in Mengo’s account and deemed the relationship somewhat mutual, with Mengo participating as an adult. A key point was their view that the power gap between a judge president and a secretary did not automatically make the interactions coercive. This stance has drawn fire from experts, who argue it overlooks how authority can pressure someone into going along without true consent. For everyday understanding, imagine a boss sending personal messages – even if replied to politely, the fear of job loss or backlash might keep the employee from saying no outright.
Mengo, who worked as a judges’ secretary at the Eastern Cape High Court in Makhanda, described feeling “undressed” and “useless” after receiving texts she saw as unwanted advances. She testified she was never in a romantic tie with Mbenenge and did not consent to his conduct, which left her traumatised. The panel accepted that the exchanges happened but saw them as not predatory enough for the harshest penalty. Instead, they suggested a lighter sanction, leaving the final call to the Judicial Service Commission, which could opt for a reprimand, ethics training, or no further action.
Power Dynamics at the Heart of the Debate
Nchodu points out that power imbalances play a huge role in cases like this, where a senior figure’s position can make it hard for juniors to speak up. She explains that in workplaces with clear hierarchies, like courts, employees might feel trapped – responding to keep things smooth but not because they want to. “Power dynamics at play here, again,” as one observer noted, summing up the worry that such rulings might discourage others from reporting similar issues. The tribunal’s dismissal of the “power differential” idea has experts concerned it could have a chilling effect, making victims think their complaints will not be taken seriously if seen as mutual.
This view ties into broader patterns in South Africa, where sexual harassment claims often hinge on proving impact over intent. The law looks at how actions affect dignity, through an objective lens that considers context. In Mbenenge’s case, the panel focused on evidence like omitted messages where Mengo might have reciprocated, but critics argue this misses the bigger picture of unequal status. Nchodu highlights how patriarchal attitudes can seep into hearings, with attitudes that downplay women’s experiences or allow argumentative responses from the accused instead of straight answers.
Beyond the courtroom, groups pushing for judicial reform say the case shows a need for clearer guidelines on workplace relationships. They call for mandatory training on boundaries and stronger support for complainants, so power does not silence voices. In similar past matters, delays and complex processes have worn down victims, reinforcing the steep climb for justice in a system meant to protect all.
Legal Recourse Options for Mengo and Future Steps
Even with the tribunal’s outcome, Nchodu explores how Mengo can still seek recourse through other channels. Her legal team, focused on women’s rights, has welcomed the misconduct finding as validation that Mbenenge’s behaviour was “improper.” They note Mengo keeps the right to challenge the decision, perhaps by taking it on review to a higher court. This could argue the panel erred in downplaying the power imbalance or in how they weighed evidence, like the WhatsApp chats that formed the core of the complaint.
A review might question if the tribunal applied the right standards under Section 177 of the Constitution, which allows for impeachment only on gross grounds. If successful, it could lead to a fresh look or stronger sanctions. Nchodu also touches on civil options, where Mengo could sue for damages over emotional harm or dignity violations, bypassing the tribunal’s limits. Such steps would aim to hold Mbenenge accountable personally, beyond his judicial role.
The Judicial Service Commission now holds the reins, set to review the report and decide on sanctions. If they uphold the lighter penalty, Mbenenge stays in his post, overseeing key court matters. But public pressure is building for transparency, with calls to release the full report so people can judge for themselves. Nchodu warns that without addressing these gaps, trust in the judiciary – a pillar of democracy – could weaken, especially among those who see it as out of touch with real-world inequalities.
Broader Implications for Workplace Fairness in South Africa
This case shines a light on systemic issues in handling harassment, not just in courts but across sectors. Nchodu draws parallels to other high-profile matters, where power lets misconduct slide until exposed. In South Africa, where gender-based violence remains rife, rulings like this can send mixed signals – encouraging reports by acknowledging wrongdoing but discouraging them by avoiding tough labels like “gross misconduct.”
Experts urge reforms, such as independent oversight for complaints and faster timelines to ease the burden on victims. Training for all staff on consent and boundaries could prevent future cases, while whistleblower protections might encourage speaking out. For someone trying to grasp this, think of it as balancing authority with accountability – judges enforce laws, so they must live by higher standards to keep public faith.
As discussions continue, Nchodu’s breakdown offers a roadmap for understanding these dynamics and pushing for change. The Mbenenge saga reminds everyone that justice must evolve to protect the vulnerable, ensuring no one feels powerless in the face of improper conduct. With the commission’s decision looming, all eyes are on how this plays out, potentially setting precedents for years to come.
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