The Judicial Service Commission (JSC) has recommended to President Cyril Ramaphosa that he should not suspend Eastern Cape Judge President Selby Mbenenge while allegations of sexual harassment continue to be heard. Mbenenge is still on special leave, pending the outcome of the tribunal, and is expected to finalise all partly heard matters.
The decision was made after JSC called for the interested parties to respond on whether the Jjsonb should be advising the President in terms of section 177(3) of the Constitution on whether to suspend the Judge President in the wake of an investigation against him.
Now, Mbenenge, who is the head judge in the Eastern Cape Division, faces charges of sexually harassing another person and has been referred to the Judicial Conduct Tribunal for further investigation. This is the first time that a complaint of this nature has been considered by the tribunal and which it is made to consider impeachable conduct.
The decision of the JSC not to recommend a suspension again highlights the complexity and sensitivity of the matter. The allegations against Mbenenge are serious, yet the JSC avoided taking a further decision until the completion of the tribunal procedure.
Over the years, instances of sexual harassment within the judiciary have come more and more to light, calling forth loud cries for strong mechanisms against such misconduct. The proposal of a Judicial Conduct Tribunal is a major step afoot towards instituting accountability and transparency within the judiciary.
The decision also highlights the principles of natural justice where due process is concerned and the fair treatment accorded to a person accused of any misdeeds. By allowing Mbenenge to continue discharging his functions in the course of special leave, the JSC complies with the principles of natural justice, considering that all parties are entitled to a hearing.
But, at the same time, it is of importance to ensure that the gravity of the allegations and the implications that may hold on the integrity of the judiciary do not fade away. That, at least, is what the move by JSC to send the matter to a tribunal does.
All tribunal processes should be carried out with the full cooperation of the aggrieved party, transparency, and impartiality. The implications of that inquiry will not only be to Judge President Mbenenge, but to the larger judicial system and to the public in the administration of justice.
These stakeholders, in the wake of such developments, need to remain alert to see to it that the process is done professionally and with integrity. It is a requirement in responding to allegations regarding the conduct of the individuals within the judiciary to make sure that the supremacy of the rule of law and respect for the right of every individual involved is maintained.
