Eastern Cape judge president, Selby Mbenenge. (Judges Matter)
Gender expert Lisa Vetten says legal professional Andiswa Mengo’s ambiguous responses to Eastern Cape judge president Selby Mbenenge’s overtures were signs of someone navigating limited agency in the workplace but his counsel Muzi Sikhakhane argued on Tuesday that this showed her complicit participation in an office romance with his client.
The tribunal looking into whether Mbenenge is guilty of gross misconduct for the alleged sexual harassment of Mengo resumed on Monday, with Sikhakhane establishing that Vetten only had access to the WhatsApp texts provided by the evidence leader and had not read Mbenenge’s affidavit or transcripts of the cross-examination of Mengo.
“When it comes to the complainant, you are prepared to give very sympathetic, long-winded explanations for what she says, but you do not do that when you interpret what the respondent does,” Sikhakhane said on Tuesday in his continued cross-examination of Vetten.
“As an expert, you are not here as an advocate for complainants; you are here to interpret and give objective evidence.”
He said Vetten was blunt when analysing Mbenenge’s texts but sympathetic when interpreting Mengo’s allegations.
The gender expert had omitted salacious texts sent by Mengo, Sikhakhane added, claiming this showed the complainant was not ambiguous in her feelings and did not regard Mbenenge as a father figure but as a romantic interest. Even when Mengo was clear in her texts, Vetten wrongly interpreted it as an avoidance strategy, he said.
“The assumption of your opinion is that, faced with the words of the complainant, you offered a different interpretation of what she said,” Sikhakhane said.
Vetten said she observed a pattern in the texts in which Mengo said one thing and did another — similar to when she said “Will do!” in response to a request for naked photos from Mbenenge but did not send them.
Sikhakhane argued that Vetten’s interpretation of Mengo as a childlike victim who could not speak up for herself within a restrictive power dynamic did not reflect the complainant’s character.
Vetten responded that her opinion of Mengo and her responses within the power dynamics was consistent with similar cases of gender-based violence she had worked on.
“My comments are based on what I read here and how I understand or see what she says,” said Vetten, adding that she had considered the heads of argument and the context of the case.
Sikhakhane responded that Vetten was making generalisations about women and sexual harassment, which did not apply to the specific case between Mengo and Mbenenge.
He added that Mengo is a 42-year-old woman who is intelligent and capable of standing up for herself when made uncomfortable by sexual advances.
Sikhakhane said Mengo had a history of belligerence in the workplace, including an incident in which she physically attacked her line manager. He said this behaviour showed that she was not timid or afraid of confrontation.
“[This] particular complainant has exhibited a propensity not to fear authority and has physically attacked her line manager.”
Vetten responded that people can shift between aggressive and passive-aggressive behaviour, adding that a history of being extroverted did not mean power dynamics did not affect a person in subtle ways.
Sikhakhane resumed his earlier argument, first made during the tribunal’s initial sitting in January, that power relations are not static and that his client’s case did not fit a conventional gender dynamic.
He said that power could shift during a relationship and that, during the course of their conversation, the less powerful court secretary had held power over the judge president.
Sikhakhane said Vetten lacked an understanding of cultural and linguistic nuances and was therefore unable to analyse what is appropriate during courtship between two African people.
Vetten responded that her observation was that the conversation between Mengo and Mbenenge was inappropriate for the workplace.
While she argued that it was misconduct for a judge president to pursue a junior employee, Sikhakhane said this did not constitute harassment as the complainant was complicit in the affair.
Sikhakhane said Vetten was a well-known gender activist who, although she had helped many women, brought bias against his client and showed sympathy for Mengo.
“If I were to testify in matters where I must choose between African people and others, I would refuse, because I would not resist the temptation of not being objective.
“Do you agree with me that a person like me or you, who has strong views about a particular side of things, can actually sacrifice objectivity and present views filled with their own feelings and idiosyncrasies?”
Vetten responded that she had served on panels before and adjudicated cases in which the evidence presented did not fit a finding of sexual harassment.
Sikhakhane argued that since Vetten had admitted to not understanding isiXhosa, her expert analysis lacked insight into prevailing cultural practices around courtship.
“Your analysis is deficient without a cultural understanding of how romantic relationships unfold in an African setup,” he said.
“If you had read the cross-examination, it would have enhanced your analysis and impacted some of the things you said, because you do not know what he said.”
Vetten said she was aware from media reports and the evidence leader’s heads of argument that Mbenenge believed the relationship was consensual. However, she was not convinced when she read the WhatsApp messages.
What stood out from the messages was that, while Mengo did not explicitly reject Mbenenge, she refused to commit to any of his sexual advances.
Sikhakhane said Vetten’s description of Mengo as a submissive and docile woman was inaccurate and that false claims of sexual harassment risked undermining the experiences of actual victims.
Vetten said she was aware that false claims do occur but noted that women’s credibility is often undermined when they do not “behave well” enough to fit the description of a victim.
Sikhakhane implied that Mengo was making a false claim against Mbenenge and was using the allegation of sexual harassment to attack his character, which he said undermines gender-based violence advocacy.
The judicial conduct tribunal continues until 11 July, with Mbenenge expected to bring his witnesses and testify himself.