When Private Conduct Becomes a Public Standard of Accountability

By David Short | Director and Amanda Kubheka | Candidate Attorney

The proceedings involving Judge President Selby Mbenenge and Ms Andiswa Mengo have attracted significant public attention that extends beyond the bench.  While the circumstances are unique to the judicial environment, the broader principle applies to every workplace and institution.

The matter raises an important question for all workplaces and institutions. When does conduct between two adults become more than a private exchange, and when does it become a matter of professional accountability?

The Judicial Conduct Tribunal initially found that Judge President Mbenenge was not guilty of gross misconduct, but that he had contravened Article 5.1 of the Code of Judicial Conduct by initiating and conducting a flirtatious relationship with Ms Mengo through WhatsApp messages, including at the workplace and during working hours.

The Judicial Service Commission later took a different view. It concluded that the admitted facts established gross misconduct under section 177(1) of the Constitution.

The Tribunal’s Approach

The Tribunal approached the matter by asking whether the conduct amounted to sexual harassment. It found that the admitted WhatsApp exchanges were not unwelcome on the balance of probabilities and concluded that sexual harassment had not been established. It also found that certain disputed allegations, including the alleged office incident and disputed images, had not been proven.

However, the Tribunal did not end the enquiry there. On the respondent’s own version, it found that his conduct still required consideration under Article 5.1 of the Code of Judicial Conduct, which requires a judge to act honourably and in a manner befitting judicial office.

The Tribunal therefore found misconduct, but not gross misconduct.

The JSC’s Broader View

The JSC accepted that the Tribunal had the power to make a finding of misconduct but found that the Tribunal had understated the seriousness of the admitted conduct.

In the JSC’s view, the enquiry should not have been limited to whether the exchanges took place at work or during working hours. The more important question was the nature, content and context of the communications, particularly because they were initiated by a Judge President and involved a junior member of staff.

The JSC also found that the Tribunal had not properly considered the power imbalance between the parties. It criticised the Tribunal’s approach of treating the parties as consenting adults on an equal footing, without giving sufficient weight to the disparity in position between them.

This was central to the JSC’s conclusion. In a professional environment, especially where one person holds significant authority, consent and participation cannot always be assessed as if the parties were operating on equal terms.

Authority changes the standard

One of the most important lessons from the matter is that seniority carries its own standard of conduct. The JSC placed weight on the fact that Judge President Mbenenge held a position of authority, that the communications were sexual in nature, that he pursued Ms Mengo and that he showed no remorse for his conduct. It found that the conduct undermined the values of the judiciary, including integrity, accountability, equality, respect and dignity.

For employers, professional bodies and institutional leaders, the principle is clear that a person in authority cannot rely only on the argument that exchanges were private, mutual or partly consensual. The question is also whether the conduct was compatible with the office, role or authority held by that person.

Practical Implications

This matter is a reminder that misconduct enquiries should consider the full context of the relationship between the parties. That includes seniority, reporting lines, institutional authority, vulnerability, workplace culture, and the effect of the conduct on confidence in the institution.

It also shows that conduct outside normal working hours may still be relevant where it arises from a workplace relationship or affects the standards expected from a person in office.

For employers and institutions, the case reinforces the importance of clear conduct policies, proper reporting mechanisms, and decision-makers who understand that power imbalances can affect how conduct is experienced, reported and assessed.

Conclusion

The Judge President Mbenenge matter is not only a judicial discipline matter. It is a broader reminder that leadership positions come with heightened duties.

Private messages may be sent on personal devices. They may be exchanged after hours. They may even appear, at least on one version, to involve a degree of participation. But where the relationship is shaped by authority, workplace proximity and institutional power, the conduct may still fall to be judged against a public and professional standard.

That is the central lesson from the JSC’s decision. The higher the office, the higher the duty to act with judgment, restraint and respect.