News24 | Mbenenge takes on JSC, insists tribunal cleared him of sexual harassment

Eastern Cape Judge President Selby Mbenenge is adamant his sexually loaded WhatsApp exchanges with High Court secretary Andiswa Mengo were consensual, and says the Judicial Service Commission (JSC) finding that he should face impeachment for sexual harassment is unlawful, unfair and irrational.

Mbenenge has launched an application in the Gauteng High Court in Pretoria to block Parliament from proceeding with the impeachment process and the vote that could strip him of all his judicial benefits, pending a far-reaching legal challenge to the findings against him.

A judicial conduct tribunal, which was headed by retired Judge President Bernhard Ngoepe, endorsed Mbenenge’s argument that his WhatsApp exchanges with then 37-year-old single mother Mengo were consensual and not unwelcome, and found “there was no sexual harassment”.

The tribunal did, however, find Mbenenge “guilty of a degree of misconduct not amounting to gross misconduct in that he contravened Article 5.1 of the Code of Judicial Conduct, read with Note 5 (iii) thereto in that he, at a place of work and during working hours, initiated, and subsequently conducted, a flirtatious relationship with Ms A Mengo through a series of WhatsApp messages exchanged between them”.

That finding was overturned by the JSC, which found that Mbenenge was guilty of gross misconduct and should face impeachment.

READ | JSC disagrees with tribunal, finds Mbenenge guilty of impeachable gross misconduct

Mbenenge is now seeking to challenge both that decision and the tribunal’s finding that he was guilty of a lesser charge of misconduct, with the Judge President arguing he was never given an opportunity to defend himself against it. He nonetheless endorses the tribunal's findings against Mengo, who it found was not a credible witness.

While Mengo’s legal team had argued that the vast majority of sexually loaded messages had been sent to her by the much older Mbenenge, they contended that she played along out of fear that not doing so could harm her professionally; however, the tribunal rejected that submission.

Instead, it stressed that the case against Mbenenge was based on “written WhatsApp messages, which speak for themselves, some of which, as already indicated, came from [Mengo] herself and were flirtatious and salacious, and which, importantly, she did not deny authoring and sending”.

The tribunal report focuses almost entirely on Mbenenge’s attack on Mengo’s credibility as a witness, and accepted his accusation that she lied about not copying her first sexual harassment complaint against him from an earli