JUDITH FEBRUARY & CHRIS OXTOBY | Judge President Mbenenge’s fight to stay in office explained

‘Judge President Selby Mbenenge has launched legal proceedings to review and set aside the JSC’s decision to reject the tribunal’s finding and to make its finding of gross misconduct.’

Following a meeting in early July 2026, the Judicial Service Commission (JSC) announced that it had resolved to recommend that President Cyril Ramaphosa suspend Eastern Cape Judge President Selby Mbenenge, pending Parliament’s decision on whether to remove the judge president from office.

A few weeks later, Mbenenge was granted an interim interdict, suspending the finalisation of the complaint until the courts deal with the application to review the finding of gross misconduct made against him.

The complaint against the Judge President has been ongoing for several years, and it may be confusing to see how these various developments relate to each other and what they mean for the ultimate outcome of the complaint.

We seek to provide clarity by explaining what has happened and what to expect as the process continues.

First, it is necessary to set out briefly the rather complex process by which complaints against judges are dealt with. In essence, serious complaints, which may lead to a judge’s removal from office (or ‘impeachment’), are referred to a judicial conduct tribunal.

These grounds are entrenched in the Constitution, which provides that a judge can be removed from office for incapacity, gross incompetence, or gross misconduct. The majority of serious complaints against judges have related to allegations of gross misconduct.

The Judicial Conduct Tribunal carries out hearings to investigate the complaint and reports to the JSC. The JSC must then decide whether grounds for removal from office have been established.

If so, the matter is referred to the National Assembly. If a two-thirds majority is obtained in the National Assembly vote, the judge must be removed from office.

The Constitution also provides that the President, on the advice of the JSC, may suspend a judge who is “the subject of a procedure” to remove them from office.

To return to the Mbenenge saga. The episode began when Ms Andiswa Mengo, who was then a judges’ secretary at the Eastern Cape High Court (the court headed by Mbenenge), lodged a complaint of sexual harassment against Mbenenge.

The JSC determined that the matter was sufficiently serious and referred it to a judicial conduct tribunal to investigate whether Mbenenge had committed gross misconduct.

The tribunal began proceedings in January 2025. These attracted considerable public interest. It is not the purpose of this article to revisit those proceedings, suffice to say that the tribunal ultimately found that Mbenenge had not committed gross misconduct (and which would have meant that he would not be impeached), but that he was guilty of “ordinary” misconduct, which would have attracted less serious sanctions.

The tribunal’s finding, and how it handled the proceedings, was subject to forceful criticism. The strength of these criticisms was borne out when the JSC declined to follow the tribunal’s recommendation and found that Mbenenge had indeed committed gross misconduct.

The JSC is entitled to do so. The JSC Act provides that the JSC must consider a tribunal’s report and make a finding on whether any of the grounds for impeachment are present. It therefore seems clear that the Act contemplates the JSC making its own decision, informed by the tribunal’s report.

But it is unusual for the JSC to decline to follow a tribunal finding. We are only aware of one other instance where the JSC declined to follow a tribunal recommendation. This is related to the complaint against former judge Nkola Motata.

The tribunal in that matter found that Motata had committed gross misconduct following a notorious motor car accident in 2007.

The tribunal found that Motata had used racist language and advanced a defence that he knew to be untrue in his subsequent criminal trial.

The JSC, however, found that Motata’s conduct constituted misconduct falling short of gross misconduct and imposed a fine. But in the case of Freedom Under Law v Judicial Service Commission, the Supreme Court of Appeal set aside the JSC’s decision and ordered the JSC to refer the matter directly to Parliament to vote on Motata’s impeachment. Motata was subsequently removed from office.

Judge President Mbenenge has launched legal proceedings to review and set aside the JSC’s decision to reject the tribunal’s finding and to make its finding of gross misconduct.

It was in this context that the interim interdict was granted. The purpose of the interdict is to pause the impeachment process until the courts decide on Mbenenge’s review.

This is a standard legal procedure. It seeks to prevent a situation where Mbenenge’s might succeed in overturning the JSC’s decision after he has already been removed from office.

If his review fails, the impeachment proceedings will continue unimpeded.

If the review is successful, the court’s decision would determine the way forward. The court may substitute its own decision, or it may require the JSC (or even the tribunal) to reconsider the matter.

But these are outcomes that can only follow once the review proceedings have been decided.

The interim interdict does not make any determination of the merits of the case – it simply halts the impeachment proceedings and requires the proceedings before the National Assembly to be paused until the review is decided.

To reiterate, the courts have not yet made any determination on the merits of Mbenenge’s legal challenge. That stage of the proceedings has yet to happen.

This point is illustrated by the fact that the interdict was not opposed and was granted by consent between the parties. The real legal battle in Mbenenge’s attempt to overturn the JSC’s decision is still to come.

Where does the JSC’s recommendation that Mbenenge be suspended fit into this?

It is anomalous that the recommendation for suspension has happened so late in the process, and it is understandable that it may have caused confusion.

The JSC’s past practice has almost always been that judges facing serious complaints of misconduct are indeed suspended – and usually much earlier in the process.

In a 2022 report on the functioning of the JSC, Freedom Under Law noted that, with the exception of former judge president Hlophe, the JSC’s practice had been to recommend suspension.

The report argued that it should be a default policy for the JSC to recommend suspension pending the resolution of complaints of potentially impeachable conduct.

The Mbenenge saga provides support for this recommendation and illustrates how measures of suspension can be inadequate. Mbenenge was initially placed on special leave.

After the tribunal’s finding that he had not committed misconduct, Mbenenge indicated that he intended to return to work immediately, only for the Office of the Chief Justice to hastily issue a statement clarifying that he remained on special leave until the JSC had considered the tribunal’s report.

Special leave is provided for in regulations to the Judges’ Remuneration and Conditions of Employment Act.

By contrast, the procedure for suspension is provided for in the Constitution, and ensures greater certainty for a judge’s status than special leave does.

There are other compelling reasons why suspension should be implemented. It is harmful to public confidence in the judiciary for a judge who is subject to serious allegations that may lead to their removal from office to continue in a judicial role while the allegations are being resolved.

This is particularly so, as the Freedom Under Law report points out, in the case of judges president, who play a key role in the functioning of the courts.

Hopefully, the JSC will heed these lessons and make recommendations for suspension timeously and in all cases (barring truly exceptional circumstances) in the future.

What is the way forward?

To our knowledge, the President has not yet decided on Mbenenge’s potential suspension. This should not be impacted by the interdict of the impeachment process.

A suspension would operate in parallel, but would not affect that process. The courts’ decision on Mbenenge’s review will determine whether he will face a vote from the National Assembly for his removal. In short, the process still has a long way to go.

First published on EWN.