31 January 2026
Eastern Cape Judge President Selby Mbenenge. Archive photo: Office of the Chief Justice
Eastern Cape Judge President Selby Mbenenge will likely not face impeachment following a ruling by a Judicial Conduct Tribunal that he is not guilty of gross misconduct in relation to allegations that he sexually harassed a junior secretary at the court.
While the Judicial Services Commission (JSC) still has to consider the report - which it can either endorse or reject — the tribunal has found that he was only guilty of a “degree of misconduct”, in that he, at a place of work and during working hours, initiated and subsequently conducted a flirtatious relationship with Andiswa Mengo.
It was not sexual harassment, the tribunal said.
The tribunal, chaired by retired Judge Bernard Ngoepe, had probed allegations by Mengo that the senior judge had sent her multiple Whatsapp messages between 2021 and 2022, some containing “sexually explicit” emojis of bananas and eggplants, and others in which he asked her for naked pictures and if they could be intimate.
Mbenenge conceded that he sent the messages, which were retrieved from Mengo’s cellphone, but claimed the relationship was consensual. He explicitly denied sending her a picture of his penis or that he asked her for oral sex in his Mthatha chambers.
Mengo claimed his advances were totally unwanted. She said her “flirtatious” responses were because she was shocked and confused by his advances and was frightened of the consequences if she outrightly rebuffed him.
In its ruling, the tribunal went step by step through each of her allegations - and concluded that Mengo had “clearly lied” about some issues, which had “severely compromised” her credibility.
“We make it clear that we did not disbelieve her simply because she was a woman. The finding that she did lie did immeasurable damage to her case,” the tribunal said.
It found that in her statement of complaint, Mengo had omitted her own flirtatious and salacious messages to Mbenenge - a point she had conceded under cross examination.
Regarding Mbenenge’s suggestion for sexual intimacy, the tribunal said on an objective reading of the messages, Mbenenge’s advances had been rejected, and he had accepted this rebuff.
Regarding the “disputed office incident, the disputed pictures and the disputed whatsapp message”, the tribunal said there was no credible evidence to sustain the allegations.
There was also no evidence establishing, on a balance of probabilities, that the alleged incident in the office - where Mengo said he had asked her for oral sex - had happened.
Referring to section 5.1 of the Code of Judicial Conduct — which reads that a judge must always act honourably and in a manner befitting a judge, and a judge should not engage in conduct prejudicial to the effective administration of the court — the tribunal said it had been established that Mbenenge had initiated the flirtation conversation by asking personal questions, which had nothing to do with work.
Some of the messages were exchanged during working hours when they were both meant to be working.
The tribunal said its finding that Mbenenge was guilty of misconduct — as opposed to gross misconduct — was based, in part, on the fact that Mbenenge had believed that his advances were not unwelcome because of Mengo’s responses.
The flirtation was between adults “both conversant with matters of the heart”.
“As we have seen, the messages were not for public consumption. The parties agreed to deleting them, thereby intending to keep them between themselves,” it said.
It said when the Judicial Conduct Committee recommended a referral of the complaint to a tribunal, it was not aware of the “flirtatious and salacious messages” Mengo had sent to Mbenenge.
It is expected that the JSC, sitting without political party representatives, will consider the report in April.
If the JSC accepts the report, it can direct Mbenenge to apologise to Mengo, give him a written warning or a reprimand, order that he go for counselling or reduce his salary.
Mbenenge has been on special leave since early 2024.
The Women’s Legal Centre, which represented Mengo, said it had received the report on Friday evening.
“We are currently supporting our client who requires time to process both the outcome and the deeply disappointing language used in parts of the report. We are awaiting her instructions before taking further steps,” it said in a statement.