The court secretary who accused Eastern Cape judge president Selby Mbenenge of sexual harassment has been relocated to a different court.
The Women’s Legal Centre, the organisation representing Andiswa Mengo, told The Sunday Times: “Ms Mengo has been relocated for her wellbeing and no longer works in the same court.”
The move comes as the Judicial Service Commission (JSC) prepares to decide not only what sanction Mbenenge should face for misconduct but also whether to uphold or overturn the tribunal’s findings entirely. The final decision could still open the door to impeachment.
The office of the chief justice confirmed this week that Mbenenge remains on special leave until the JSC completes its deliberations. The commission is scheduled to consider the tribunal’s 169-page report at a sitting on March 5.
The tribunal’s ruling spared Mbenenge from a finding of gross misconduct and impeachment after it rejected Mengo’s sexual harassment complaint, citing credibility concerns and unproven allegations. But it did find Mbenenge guilty of misconduct for pursuing a flirtatious relationship with a subordinate during working hours — which is a breach of the judicial code.
According to Alison Tilley of Judges Matter, both Mbenenge and Mengo will be invited to make written submissions arguing for or against the tribunal’s conclusions, including on guilt and sanctions.
We are looking at how acting judges get appointed and the policy that applies to that, as well as some of the mechanics of how the JSC appoints candidates, including the voting process. It won’t affect this case at all
— Alison Tilley, Judges Matter
“The JSC will then consider the tribunal ruling and take a final decision on the guilt or otherwise of the judge both on the sexual harassment charge and other misconduct,” Tilley explained. “They will also decide on what the sanctions will be.”
The range of possible outcomes is wide. For non-impeachable misconduct, sanctions can include a reprimand, written warning, fine or compensation, a formal apology, or mandatory counselling or training. If the JSC overturns the tribunal and finds gross misconduct, removal from office through impeachment becomes possible.
The Women’s Legal Centre confirmed that Mengo intends to challenge the ruling in her submissions to the JSC. The organisation emphasised that the commission has the authority either to accept the misconduct finding and impose remedial steps or to overturn the decision and substitute a finding of gross misconduct.
The core of the case centres around WhatsApp exchanges between Mengo and Mbenenge in mid-2021. A forensic analysis recovered messages Mengo had omitted from her complaint, including flirtatious and sexually suggestive texts she sent to the judge president. The tribunal said these omissions raised serious concerns about her reliability and undermined her claim that she was an unwilling participant.
It also rejected an allegation of an inappropriate in-person incident at the courthouse after vehicle tracker data placed Mbenenge elsewhere at the relevant time.
While acknowledging the power imbalance inherent in a senior–junior workplace relationship, the panel held that hierarchy alone could not establish coercion. It found insufficient evidence of sexual harassment but ruled that maintaining a flirtatious workplace relationship breached professional standards.
Tilley confirmed that the matter has prompted her organisation to rethink current protocols.
“We are looking at how acting judges get appointed and the policy that applies to that, as well as some of the mechanics of how the JSC appoints candidates, including the voting process. It won’t affect this case at all,” she said.
The office of the chief justice has ruled out further comment.
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