Prey: The Eastern Cape judge president, Selby Mbenenge, sent Andiswa Mengo crude photographs and suggestive texts, but she has been accused of not firmly rejecting him. Photo: Judges Matter
On Wednesday morning, Muzi Sikhakhane turned to what he termed “social theory” in his cross-examination of Andiswa Mengo, who has accused Eastern Cape judge president Selby Mbenenge of persistent sexual harassment over six months in 2021.
Sikhakhane had earlier in his questioning accused Mengo, a 37-year-old former secretary in the division, of misrepresenting her role in the relationship and contriving her complaint to cast the judge as a predator when in fact she was a willing participant in crude sexually-charged text exchanges.
He was arguing two points. First, the complainant and her counsel were pleading for an overly simplistic interpretation of relational power structures.
Second, Mengo was disingenuous when she told the Judicial Conduct Tribunal hearing that she feared she could lose her job if she rejected Mbenenge’s advances.
Sikhakhane said she knew that labour provisions made this unlikely, and she was not necessarily powerless in relation to the judge president as power between two people is rarely static.
He suggested that it may have shifted between Mengo and Mbenenge when, on 8 June 2021, she responded to a barrage of inappropriate messages by mentioning money. Mengo has testified that she did this deliberately to deter him.
“Would you agree with me that in relations, in power relations, particularly this component, where power sits is not permanent?” Sikhakhane continued.
“In fact, in that theory that you and your lawyers talk about, it is called core construction of power. It means the two of you determine in your relationship where power goes, depending on the circumstances.”
Mengo’s counsel, Nasreen Rajab-Budlender, objected that her client did not testify in academic terms, but simply responded to questions about how the power imbalance in her relationship with Mbenenge left her feeling, including in the workplace.
But the chairperson of the tribunal, retired Gauteng judge president Bernard Ngoepe, noted that reference to power relations “permeates your papers”.
Sikhakhane’s attack on Rajab-Budlender’s submissions was both a dismissal of current thinking about authority and sexual entitlement and a prelude to calling Mengo a liar whose unsubstantiated allegations had ruined his client’s reputation and personal life.
When Mengo resisted his interpretation of one of her answers, the advocate warned her not to try to “lawyer on me”. It earned him a sharp rebuke from Ngoepe.
The exchange came after Sikhakhane challenged Mengo’s testimony that Mbenenge sent her a picture of his penis on 17 June.
“Do you know his penis?” Sikhakhane asked.
“In fact it is my client’s version that you don’t,” he added, before inviting her to concede that therefore she could not identify his genitalia when she had never seen it.
Mengo said she had assumed it was Mbenenge’s penis because she did not know where he would find a photograph of another.
Sikhakhane implied that this was illogical and Mengo replied that she did not understand his question. At this he called her arrogant. Ngoepe cautioned him and stepped in to reframe the question, asking Mengo whether “because it is an assumption, you may be wrong?”
She conceded that it was possible.
This was not the only moment during cross-examination where Mengo responded defensively to Sikhakhane, but readily answered the question when Ngoepe intervened and worded it differently.
Mbenenge has denied sending the photograph, as well as a raft of pornographic images that Mengo told the tribunal he routinely deleted not long after she received them.
She eventually started downloading screenshots as evidence, some of which were attached to the complaint she filed against Mbenenge in late 2022 after transferring to the office of the chief justice in Midrand.
There have been so many references to lewd photos since the hearing began on 13 January that confusion arose as to whether Mengo had said that an image marked as exhibit K8 was a picture of Mbenenge’s penis he sent her in late June.
“There is more than one photograph of a private part so I think maybe advocate Sikhakhane is questioning her on the second photo, and not the first,” Rajab-Budlender said when Ngoepe asked for clarity.
There was further confusion as to whether the image, which Ngoepe said was so blurred as to be meaningless, was correctly filed as the exhibit in question.
It transpired it was not, and Sikhakhane apologised for his error before reprising his argument that the image Mengo claimed to have received, which he said lay at the heart of the sexual misconduct inquiry, never existed.
“It is why we are here. You will agree with me that it is this picture that has tarnished the respondent’s reputation and probably broken his family?” he asked, before saying forensic experts could find no trace of it, or of any communication on the day.
“Evidence will be led that actually this picture you claim was sent to you can never be found by experts on the phone of the respondent,” he said.
“It is false that in this time we are talking about or any other time you were sent any image of private parts or a private part.”
Mengo said she disputed this.
Sikhakhane accused Mengo of lying by omission in her complaint, because she made no reference to the messages where she seemingly indulged Mbenenge’s advances, replying with sexual innuendo of her own to texts she described in testimony as “disgusting”.
She has told the tribunal, often in tears, that she took to responding in a way that would please the judge president so that he would leave her in peace after realising that objecting had no effect.
But Sikhakhane argued that Mengo had occasion to tell Mbenenge clearly that his advances were unwanted. She could have done so when he asked her why she was cool towards him at court, he suggested. Yet Mengo merely said she was busy.
She could have been plain when he asked whether they could be intimate once she returned from a work trip to East London. Here, the record shows that Mengo objected and said they should “face each other”.
To this Mbenenge asked: “What if we melt?” Mengo warned him to contain himself and Mbenenge replied that he would oblige her. He further asked whether she just wanted to be friends. Mengo did not respond.
It was her testimony that she suggested a meeting because she had resolved to confront Mbenenge. Yet, Sikhakhane said, she never followed through, either in this exchange or in person.
“You could have expressly told the respondent to stop because you had amassed the courage to do so.”
Instead, he continued, she responded to fruit emojis that carry sexual connotations with rows of laughing emojis.
“So, ma’am, I am back to the fact that you agree with me that despite your alleged courage you continue to send messages that do not reflect lack of consent or lack of amusement.”
Mengo has testified that when she did come face to face with Mbenenge after he called her into his chambers, he pointed to his erection and asked for oral sex. She said after the incident she confided in a colleague, who told her he had a reputation for sordid behaviour.
He risks impeachment but for Mengo’s complaint to be upheld, the tribunal must find that the interaction was not consensual.