This story has been updated to reflect judges' comment
Justice minister Ronald Lamola has broken his silence about sexual harassment allegations against Eastern Cape judge-president Selby Mbenenge, saying he would consider “the integrity of the judiciary” if asked to grant Mbenenge special leave during a judicial conduct committee (JCC) probe.
Lamola weighed in on the investigation into Mbenenge’s alleged behaviour by a sub-committee of the Judicial Service Commission (JSC) after the lodging of a formal complaint by court official Andiswa Mengo.
The complaint was submitted to the office of the chief justice (OCJ) and concerns a series of face-to-face and electronic exchanges between the complainant and Mbenenge during 2021 and 2022.
Last week judiciary monitoring and advocacy group Judges Matter called for Mbenenge to step down. The organisation pointed to the “extremely serious complaint [which] must have had an impact on the functioning” of the Eastern Cape High Court.
Mbenenge’s attorney, Simphiwe Mbabane has denied the allegations, saying they had caused “irreparable harm to our client’s good name, reputation, and dignity”.
In a statement issued from Europe after Lamola addressed the International Congress of Justice Ministers in Rome this week, his spokesperson Chrispin Phiri said Mbenenge had “not yet been found guilty of the allegations levelled against him”.
As a result, “the only option available is to place him on special leave”.
Under the regulations of the Judges’ Remuneration and Conditions of Employment Act, Lamola could grant special leave to Mbenenge if he received a recommendation from chief justice Raymond Zondo or a request directly from Mbenenge, Phiri said.
“If an application and recommendation by the chief justice were to be submitted to the minister, he would apply his mind and make a decision that will be [to] protect and uphold the integrity of the judiciary.”
The statement hints at Lamola’s constraints in exploring options for dealing with the matter without breaching the separation of powers doctrine which regulates interaction across the three branches of government.
The minister is also a member of the JSC and if the Mbenenge investigation ultimately reaches that body, Lamola will have an opportunity to express his view openly on the outcome of the probe.
It also emerged last week that, after the formal complaint was lodged in December, at least two Eastern Cape judges interposed themselves in the matter, in apparently separate bids to influence the outcome.
If an application and recommendation by the chief justice were to be submitted to the minister, he would apply his mind and make a decision that will be [to] protect and uphold the integrity of the judiciary
— Ronald Lamola's spokesperson Chrispin Phiri
Gqeberha judge Mandela Makaula allegedly called Mengo with an offer to convene a roundtable discussion between her and Mbenenge.
Mengo is believed to have asserted her right to follow the formal complaint process, causing Makaula to back off and say that he did not want to tell her what to do.
Mthatha-based judge Lindiwe Rusi also allegedly called to confront Mengo about her complaint against “uTata”, as well as about WhatsApp status messages in which Mengo had referred to Rusi, and about a meeting between Mengo and Mbenenge.
Rusi and Mengo later had a WhatsApp message exchange, in which Mengo warned Rusi not to rely on “hearsay”, and that “threats don't shake nor move me”.
During her JSC interview for the Mthatha bench in 2021, Rusi was grilled about a claim pornographic material was found on a computer she used while working at Legal Aid SA.
She enjoyed strong support from Mbenenge and Mthatha attorney and JSC commissioner Mvuzo Notyesi, with Mbenenge strenuously objecting to her being questioned about “spurious allegations” which she had previously addressed in correspondence with the JSC.
Both Makaula and Rusi declined to comment when asked why they would regard it as appropriate to engage informally with an official whose complaint is the subject of a formal investigation by the JCC.
Makaula was specifically asked if the claim against him was untrue but said if the OCJ “says I must respond, then I will respond”.
Rusi said: “The matter is correctly before the JCC. I don’t think it will [be] appropriate for me or any person, of course other than yourselves as journalists, to comment thereon.”
JSC official in the OCJ Kutlwano Moretlwe last week confirmed that it had received a complaint against Mbenenge, saying it had been referred to the JCC.
“The parties have been invited to make any written submissions by March 24 2023.”
He said the JSC had not received any complaint against the judges and “does not mediate between the media and judges to answer questions from the media”.
The JSC also denied knowledge of an anonymous document circulated late in 2021 containing allegations of impropriety that included sexual harassment against officials of the high court in the Eastern Cape.
Two OCJ officials are known to have travelled to East London in February 2022 for meetings with women from various high court precincts mentioned in the document as having been victims of sexual harassment.
UPDATE : Two top Eastern Cape judges have denied interposing themselves in a sexual harassment case laid against the province’s judge president Selby Mbenenge.
The complaint, which was laid in December by court official Andiswa Mengo, is before the Judicial Conduct Committee, a subcommittee of the Judicial Services Commission which oversees South Africa’s judges.
Two weeks ago, the Sunday Times reported that Mthatha-based judge Lindiwe Rusi and judge Mandela Makaula from Gqeberha allegedly interposed themselves in the matter by communicating with the complainant in separate bids to influence the outcome.
The two declined to comment on the allegations at the time and referred the Sunday Times to the Office of the Chief Justice (OCJ).
However, since then, the two have, through the OCJ, denied allegations of interference.
“Judge Rusi denies that she interposed herself in the matter between Ms Mengo and Judge President Mbenenge with the view to influencing the outcome,” said the OCJ in a statement.
The Sunday Times included information about judge Rusi’s interview for the Mthatha bench in 2021. She was supported by Mbenenge and JSC commissioner Mvuzo Notyesi, with Mbenenge objecting to her being questioned about “spurious allegations” which she had previously addressed.
Through the OCJ, judge Rusi said the inclusion of the background had the effect of “slandering” her and incorrectly inferred that she “owed allegiance to the judge president, which was the reason for my alleged 'interposition' and 'attempt to influence the outcome' in the matter relating to Ms Mengo's complaint”. She said it also incorrectly suggested that she was “not appointed on merit, but based on some causa or allegiance”.
In a separate statement issued by the OCJ, judge Makaula said the Sunday Times published a “distorted conversation” he had with the reporter and did not explicitly put the allegation to him that he interposed himself in the complaint between judge Mbenenge and his accuser.
“I informed him that I would not speak directly with him as our media policy dictates that we can only interact with the media through the spokesperson of the OCJ or when mandated by that office,” judge Makaula said.
“The report about me is not only inaccurate, it is wrong. I never did or said anything that was calculated to influence Ms Mengo’s complaint. I never had any discussions with Ms Mengo regarding her complaint.”
Last week judiciary monitoring and advocacy group Judges Matter called for Mbenenge to step down. The organisation pointed to the “extremely serious complaint [which] must have had an impact on the functioning” of the Eastern Cape High Court.
Mbenenge’s attorney Simphiwe Mbabane has denied the allegations, saying they had caused “irreparable harm to our client’s good name, reputation, and dignity”.
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