From Flirtation to Tribunal: The Misuse of Article 5 in the Mbenenge Case

IOL News

09-07-2025

Eastern Cape High Court Judge President Selby Mbenenge. As the case unfolds, the distinction between flirtation and harassment blurs, challenging the integrity of judicial processes in South Africa, writes Gillian Schutte.
Image: Office of the Chief Justice
As the Judicial Conduct Tribunal against Judge President Selby Mbenenge drags on under intense public and media scrutiny, a curious and dangerous paradox has taken shape: the accused is being tried as if he were charged with violating Article 5 of the Code of Judicial Conduct. But he isn't.
Article 5, which demands that a judge must always, and not only in the discharge of official duties, act honourably and in a manner befitting judicial office, has become the moral lens through which the case is viewed. Yet, it is absent from the formal charge sheet. Mbenenge is not being judged on whether his conduct was unbecoming. He is being tried, formally and narrowly, for sexual harassment — a specific and technical offence that must meet a higher threshold of proof.
This sleight of hand, whether careless or calculated, has serious implications not only for the principle of due process but for the integrity of judicial discipline in South Africa.
The Legal Construct: Charge First, Ethics Second
In judicial proceedings, as in criminal law, the accused must meet the case as charged. This is not merely procedural nitpicking. It is a foundational principle of fairness. The JSC process does not allow for a competent verdict, the mechanism in criminal law that permits conviction on a lesser charge if the main charge fails. In the absence of Article 5 on the charge sheet, no finding of 'conduct unbecoming' can lawfully be made, no matter how convincingly the optics are stacked against him.
This is why the defence is in an invidious position. They do not deny the existence of WhatsApp flirtation. They argue, rightly, that the exchanges were mutual and private, and that the context reflects consensual banter rather than coercion. But in making this argument, they are trapped in a moral discourse not grounded in the charge, yet reinforced by media narratives, NGO rhetoric, and ideological framing.
This has created a scenario where the Tribunal proceedings blur into a cultural inquisition rather than a measured adjudication of whether the conduct in question meets the test of sexual harassment under the JSC Act.
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Flirtation, Privacy, and the Politics of Narrative
WhatsApp messages between adults, particularly when mutually flirtatious, exist within the protected domain of privacy. When lifted from that domain, stripped of full context, and reframed through ideological filters, they are transformed from interpersonal exchange into evidence of ethical decay.
The problem is that this ethical interpretation is being retrofitted to charges it was never designed to support. The media, and those prosecuting the case in the court of public opinion, are back-projecting Article 5 onto a legal process that has not invoked it.
There is, in this move, an implicit conflation of flirtation with predation. The Tribunal risks ignoring the cultural, linguistic, and social nuances of communication, particularly in isiXhosa-speaking professional environments, in favour of a universalised Western feminist script in which flirtation between a senior man and a younger woman is always interpreted as an abuse of power, regardless of context, mutuality, or complexity.
Ethical Optics as Soft Lawfare
What we are seeing is a trial by ethical aesthetics rather than judicial evidence. The complainant's claims are amplified by external experts and NGO representatives who, while asserting neutrality, operate from within donor-funded ideological frameworks that centre presumed guilt in gender-based claims, especially when the accused is a Black man in power.
This mode of operation is fast becoming a soft lawfare tactic. Apply the ethics of Article 5 in discourse, but avoid its procedural burdens in law. The result is a hybrid tribunal where the public is encouraged to believe that the judge is 'clearly guilty' of something, even if the charge, as formulated, cannot sustain that belief under scrutiny.
The core question is no longer whether the accused committed sexual harassment, but whether he appears respectable enough to bear the burden of his office. But appearances are not evidence. And in a society already fractured by class, gender, and racialised trauma, we cannot afford to replace law with moral performance.
A Caution for the Judiciary
This Tribunal has the potential to set a dangerous precedent. That optics trump process, and that an ideological charge can succeed even when the legal charge fails.
If Mbenenge is found guilty of sexual harassment without meeting the evidentiary requirements of that charge, on the basis of ethical discomfort with his behaviour, then the judiciary will have crossed into a terrain where the rules don't matter and only feelings do.
Worse still, such a precedent would not protect women. It would erode procedural fairness in ways that can be weaponised in any direction. Today it is used against a powerful Black man. Tomorrow, it may be used to silence dissent, criminalise political speech, or remove judges who challenge elite interests.
We are not obliged to admire Mbenenge's messages. But unless the evidence proves that they constitute harassment rather than flirtation, coercion rather than banter, harm rather than mutual play, then we must be cautious not to abandon the very principles that protect all of us.
And we must insist that justice be done as charged, not as imagined.
The ongoing Judicial Conduct Tribunal against Judge President Selby Mbenenge raises critical questions about the misuse of Article 5 of the Code of Judicial Conduct. As the case unfolds, the distinction between flirtation and harassment blurs, challenging the integrity of judicial processes in South Africa.
Image: IOL