Eastern Cape Judge President Selby Mbenenge has filed a supplementary affidavit in a pending High Court review, alleging that the Judicial Service Commission (JSC) reached its gross-misconduct finding before constructing reasons to defend it. The affidavit, which draws on the JSC's own transcript and internal correspondence, presents evidence suggesting that the disciplinary process worked backwards from a preferred result. Mbenenge's claims have yet to be tested in court.
The JSC's decision to declare Mbenenge guilty of gross misconduct was made on March 5, 2026, despite the Judicial Conduct Tribunal's finding that there was no sexual harassment, no proven abuse of power, and no gross misconduct. The Tribunal did, however, criticize Mbenenge's conduct, finding that sexualized communication during working hours contravened the Code of Judicial Conduct and amounted to misconduct that fell short of gross misconduct. The JSC's decision has significant implications for Mbenenge's career, office, and reputation.
According to Mbenenge's affidavit, the JSC reached its decision through a secret ballot on three propositions formulated during the meeting by commissioners advocating a gross-misconduct finding. No collective reasons had been settled when the votes were cast, and the task of producing reasons was left to the JSC's litigation committee after the decision had already been taken. This process raises concerns about the legitimacy of the JSC's decision and whether it was based on a thorough consideration of the evidence.
Mbenenge's affidavit also alleges that the JSC's report does not correspond with what commissioners discussed during the meeting. Some propositions appearing in the report were apparently never articulated during the deliberations, and important qualifications raised in the meeting disappeared. The affidavit also claims that formulations in the JSC's report resemble submissions made on behalf of court secretary Andiswa Mengo, which were not given to Mbenenge and therefore denied him the opportunity to respond.
The transcript of the JSC's deliberations, as presented in Mbenenge's affidavit, reveals what he describes as material misrepresentations of the Tribunal's work. Commissioners reportedly asserted that the Tribunal had ignored the imbalance of power between a Judge President and a junior court employee, despite the Tribunal having expressly considered the hierarchy and heard expert testimony about power relations. The JSC's reasoning appears to have converted the existence of institutional rank into evidence of its abuse, risking the substitution of ideological presumption for tested evidence.
The JSC's decision also raises concerns about the importance of public confidence in the judiciary. While public confidence is undoubtedly important, it cannot be secured through a process that bends evidence towards a socially approved conclusion. Confidence in a judicial institution grows from consistency, procedural integrity, and fidelity to law, and is weakened when an institution treats anticipated public sentiment as a substitute for legal reasoning. The Minister of Justice and Advocate Tembeka Ngcukaitobi SC reportedly emphasized the need to make the decision "impregnable" and "impossible to challenge".
The respondents in the High Court review, including the JSC, have until October 30, 2026, to submit their answering affidavits. The outcome of the review will have significant implications for Mbenenge's career and the JSC's disciplinary processes. If the record sustains Mbenenge's account, it will cut into the elementary principle that a person facing an adverse decision must know the case against him and receive a fair opportunity to respond.
Key points
- The JSC's decision-making process has been questioned.
- Mbenenge's affidavit presents evidence of a flawed disciplinary process.
- The High Court review will have significant implications for Mbenenge's career and the JSC's disciplinary processes.
