JSC Overturns Tribunal Ruling, Finds Judge President Guilty of Gross Misconduct

In a significant development for South Africa's judiciary, the Judicial Service Commission (JSC) has overturned the findings of a Judicial Conduct Tribunal and concluded that Eastern Cape Judge President Selby Mbenenge is guilty of gross misconduct—potentially paving the way for his removal from office.

The decision marks a dramatic reversal of the Tribunal's earlier ruling, which had cleared Mbenenge of both gross misconduct and lesser forms of misconduct following a complaint lodged by Andiswa Mengo.

JSC rejects Tribunal findings after fresh review

The JSC's decision followed a special meeting held last month in terms of section 20(1) of the Judicial Service Commission Act (Act 9 of 1994), where the Commission—excluding members designated by Parliament—considered the Tribunal's report alongside written submissions from the parties involved.

While the Tribunal had previously found Mbenenge not guilty of misconduct under multiple thresholds, including gross misconduct, the JSC reached a different conclusion after reassessing the same body of evidence.

"After consideration of the report of the Tribunal and representations of the parties… the Commission did not accept the findings of the Tribunal," the JSC said in a statement.

"On the common cause facts, the conduct of Judge President Mbenenge constitutes gross misconduct in terms of section 177(1)(a) of the Constitution."

Understanding the legal threshold: Section 177

At the centre of the development is Section 177 of the Constitution, which governs the removal of judges in South Africa.

\text{Removal of a judge: }\quad \text{Incapacity} ; \lor ; \text{Gross Incompetence} ; \lor ; \text{Gross Misconduct}

Under this constitutional provision, a judge may only be removed if:

• The JSC finds that the judge is incapacitated, grossly incompetent, or guilty of gross misconduct; and

• The National Assembly adopts a resolution supporting removal with a two-thirds majority vote

The JSC's latest finding satisfies the first requirement, effectively triggering the next phase of the constitutional process.

Matter now moves to Parliament

Following its determination, the JSC confirmed that it will submit its findings, reasons, and the full Tribunal report to the Speaker of the National Assembly in accordance with section 20(4) of the JSC Act.

This referral formally places the matter before Parliament, where lawmakers will ultimately decide whether Judge President Mbenenge should be removed from office.

Given the high threshold of a two-thirds majority required, the parliamentary process is expected to be closely watched, with significant legal and political implications.

Possible suspension under consideration

In parallel, the JSC has invited both parties to make further written submissions on whether it should advise the President to suspend Mbenenge pending the outcome of the parliamentary process.

This step would be taken in terms of section 177(3) of the Constitution, which allows the President to suspend a judge on the advice of the JSC while removal proceedings are underway.

"The Commission has invited the parties to make written submissions… whether the Commission should advise the President… to suspend Judge President Mbenenge pending the process," the JSC stated.

Implications for judicial accountability

The JSC's decision underscores the Commission's constitutional role as the ultimate guardian of judicial ethics and accountability, with the authority to independently assess Tribunal findings.

Legal experts note that it is relatively rare for the JSC to overturn a Tribunal's conclusions, making this case particularly significant for the development of judicial oversight mechanisms in South Africa.

The case also highlights the layered nature of judicial discipline, where Tribunal findings serve as recommendations rather than binding decisions, subject to final determination by the JSC.

A defining moment for the judiciary

The outcome of this process could have far-reaching implications—not only for Judge President Mbenenge, but for public confidence in the judiciary and the robustness of accountability frameworks.

As the matter moves to Parliament, attention will now shift to whether lawmakers will endorse the JSC's finding and take the unprecedented step of removing a sitting Judge President.

The full report, titled "JSC Report: Mengo v Mbenenge JP matter – April 2026," is expected to inform both parliamentary deliberations and broader public debate on judicial conduct and integrity.